# Joint Appendix — United States v. Locke

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Joint Appendix
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 89

## Text

Nos. 98-1701 and 98-1706

IN THE
Supreme Court of the United States

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Petitioner,

and
UNITED STATES OF AMERICA,
Petitioner,
Vv.

GARY LOCKE, Governor of the State of Washington, er ai.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

JOINT APPENDIX

SETH P. WAXMAN C. JONATHAN BENNER
Solicitor General ECKERT SEAMANS CHERIN
Department of Justice & MELLOTT, LLC
Washington, DC 20530-0001 1250 24th Street, N.W.
(202) 514-2217 Suite 700
Counsel of Record for Washington, DC 20037
Petitioner, United States (202) 659-6600
of America Counsel of Record for
Petitioner, INTERTANKO

CHRISTINE O. GREGOIRE JEFFREY L. NEEDLE

Attorney General LAW OFFICES OF

P.O. Box 40100 JEFFREY L. NEEDLE

Olympia, WA 98504-0100 —-119 First Avenue South

(360) 753-6245 Suite 200

Counsel of Record for Seattle, WA 98104
State Respondents (206) 447-1560

Counsel of Record for
Respondent-Intervenors

—————————————————————
Petitions for Writ of Certiorari Filed April 23, 1999
Certiorari Granted September 10, 1999

i
TABLE OF JOINT APPENDIX
Page

Relevant Docket Entries, Ninth Circuit and U.S.
Demet Comst (WD. WO.) . . oss 0: emwin ws JA-1

Letter of August 25, 1993 from Adm. Henn USCG to
Barbara Herman, OMS

Declaration of Robert Bishop in Support of Plaintiff

Letter of September 15, 1995 from OMS to Chronos

Shipping with Notice of Determination... .

Letter of June 22, 1995 to Barbara Herman, OMS
from Adm. Card USCG

January 30, 1991 Memorandum from Chief Counsel,
USCG to Chief of Staff Re: Review of
California Oil Spill Prevention and Response

Affidavit of C. Jonathan Neel (States/British
Columbia Oil Spill Task Force)
Exhibit 38

Law of the Sea Treaty Provisions

Affidavit of William B. Collins

Affidavit of Stanley J. Norman.............. JA- 88
MND BE. ow as vba kok XA ee JA-128
GP cc cece cccenediele cea JA-129
SUE SY oes bene cen eee JA-133
Exhibit 33
Exhibit 34

{[Note: Exhibits 33 and 34 are oversized
exhibits that Respondent has lodged separately
with the Court.]

Affidavit of Megan N. Dethier (Shoreline Habitats). . JA-136

Affidavit of Ronald M. Thom (Coastal Aquatic
Vegetated Habitats in Washington State). . JA-145

Affidavit of Dennis Paulson (Seabirds-Valuable and
Vulnerable Resources of Washington’s Marine

Wet). 64s is eaeewc tue JA-161
Affidavit of Morris W. Barker —_................ JA-173
Affidavit of Susan Zemek ................ JA-180

Fy rn ermeery te a JA-182
Affidavit of Richard Kocan ............... JA-191
Affidavit of Ronald F. Teissere ............ JA-200
Affidavit of Arthur McKenzie in Support of Intervenors’

Motion for Summary Judgment ........ JA-203
Declaration of Sally Ann Lentz in Support of Motion

for Summary Judgment ............. JA-211

Ames Cia ctteceenmean JA-219

ph ne rp JA-223

Page
Attachments to Declaration of Darin Bartram ... JA-245
Second Affidavit of Stanley J. Norman ....... JA-253
ees gn 2 aT eeeee JA-264
Te Meals abies Ulli ts els oo « JA-266
OE ES Te a JA-292
Declaration of William Bafus with Table "A" ... JA-295
Attachment to Reply by Plaintiff Intertanko.... . JA-301
Declaration of Jeffrey Needle in Reply to Intervenors'’
Motion for Summary Judgement ....... JA-304

Attachment A-Report Of Lord Donaldson's Inquiry
Into The Prevention Of Pollution From
a JA-306

Letter of September 28, 1993 From the Washington
State Congressional Delegation to
Commandant J. William Kime USCG ... JA-327

Affidavit of Arthur McKenzie ............. JA-330

iv

The following opinions, decisions, judgments and orders have
been omitted in printing this joint appendix because they
appear on the following pages in the appendix to the printed

Petition for Certiorari:

Order and Amended Opinion Of The United States
Court of Appeals For The Ninth Circuit Dated
And Filed June 18, 1998 And Amended
August 31, 1998 (Appendix A)............

Order Of The United States District Court For The
Western District Of Washington At Seattle
Dated, Entered And Filed November 18, 1996
(AUTRE Dg ot ecko uc twee ccdesecies

Order Of The United States Court Of Appeals For
The Ninth Circuit Dated And Filed November

DE, CI EGE hc evn aticcevaces

JA-1

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

97-35010

INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS;
Plaintiff-Appellant

USA

Intervenor-Appellant
Vv.
MIKE Lowry, Governor of the State of WA, et al

Defendants- Appellees

and

NATIONAL NATURAL RESOURCES DEFENSE COUNCIL;
WASHINGTON ENVIRONMENTAL COUNCIL;
OCEAN ADVOCATES INC.

Intervenors-Appellees

RELEVANT DOCKET ENTRIES

DATE PROCEEDINGS
4/24/97 Filed motion by the United States to
intervene; served on 4/23/97 [3218850]
(MOATT) [97-35010} (gail)

5/9/97 Received original and 15 copies amicus
curiae Int'l Chamber of Shipping's brief of
50-pgs; served on 5/7/97 (mtn to file
pending) [97-35010} (gail)

DATE
5/12/97

6/6/97

7/1/97

9/3/97

9/3/97

2/4/98

JA-2

PROCEEDINGS
Filed original and 15 copies intervenor
USA's amicus curiae brief of 56-pgs; served
on 5/7/97 [97-35010] (gail)

* * * * The mtn to intervene filed by the US
is granted. * * * *
Filed original and 15 copies Appellant's
opening brief of 92-pgs and 5 excerpts of
record (Informal: no); served on 6/30/97
[97-35010] (gail)

Filed original and 15 copies appellees (Gary
Locke, et al.)'s ans brf of 64 pgs +
appendix and 5 excerpts of record in 6 vols.:;
served on 8/25/97 [97-35010] (gail)

Received original and 15 copies intv/aple
(National Res Def Cncl, Washington Env
Cncl, and Ocean Advocates) brief of 63-pgs

(Recvd because brfs are missing proof of
service; notified cnsl.) [97-35010] (gail)

ARGUED AND SUBMITTED TO James
R. BROWNING, served on 7/31/98
(PANEL AND ALL ACTIVE JUDGES)
(97-35010] (gail)

DATE
8/31/98

8/31/98

11/24/98 °

JA-3

PROCEEDINGS

Filed order and amended opinion. The
panel's opinion, filed on 6/18/98, is
amended as follows: (For Complete Text
See Order) (FAXED TO CSL AT 2:32
P.M.) (Judges James R. BROWNING,
Diarmuid F. O'SCANNLAIN, Alfredo C.
Marquez,) (Orig. opinion id: [3472982-1])
[97-35010] (gail)

[3499649] Filed original and 40 copies aplt
Intl Assoc of Indep petition for rehearing
with suggestion for rehearing en banc 20
p.pages, served on 8/31/98 (PANEL AND
ALL ACTIVE JUDGES) [97-35010] (gail)

Filed order (James R. Browning, Diarmuid
F. O'SCANNLAIN, Alfredo C. Marquez):
The panel has unanimously voted to deny
the pet for rhrg. Judge Browning and Judge
O'Scannlain have voted to reject the sugg
for rhrg en banc, and Judge Marquez so
recommends. The full ct was advised of the
suggs for rhrg en banc. An active judge
requested a vote on whether to rehear the
matter en banc. The matter failed to receive
a majority of the votes of the nonrecused
judges in favor of en banc consideration.
FRAP 35. The pets for rhrg are DENIED
and the suggs for rhrg en banc are
REJECTED. (Judge Graber's dissent to
denial of pet for rhrg included) (See Order
for Full Text.) [3499345-1] [97-35010]
(gail)

DATE
12/2/98
3/18/99

JA-4

PROCEEDINGS
MANDATE ISSUED [97-35010] (jr)

Received letter from the Supreme Court
dated 3/15/99 re: ext of time to file pet for
writ of cert has been extended to 4/23/99
(Casefile) [97-35010] (gail)

JA-5

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON

2:95cv 1096

INTERTANKO, ef al.

V.

Lowry, et al.

RELEVANT DOCKET ENTRIES

DATE NO.
VAW/9S— 1

9/19/95 12

1/25/96 --

PROCEEDINGS

COMPLAINT of Intertanko for
declaratory relief and permanent
injunction against the enforcement of
certain statutes and regulations of the
State of WA purporting to regulate
operations, manning, and equipment of
tank vessels in interstate and
international commerce (Summons(es)
issued) Receipt # 223757 (gm) [Entry
date 07/28/95]

ANSWER to complaint [1-1] by
defendant Mike Lowry, defendant
Christine O Gregoire, defendant
Barbara J Herman (gm) [Entry date
09/22/95]

PROPOSED Intervenor's Answer by
defts Natural Resources Defense
Council & WA Environmental Council
(gm) [Entry date 01/31/96]

DATE
1/25/96

6/3/96

6/3/96

6/3/96

6/3/96

6/3/96

NO.

87

89

102

103

105

JA-6

PROCEEDINGS

ANSWER to complaint filed by
Intervening Defts Natural Resources
Defense Council & WA Environmental
Council [1-1] (gm) [Entry date
01/31/96]

MOTION by State defendants for
partial summary jgmnt; O.A. REQ'D
NOTED FOR 7/19/96 (JOINT
APPENDIX FILED IN EXPANDOS)
(gm) [Entry date 06/04/96] [Edit date
06/05/96]

MEMORANDUM by defendants in
support of motion for partial summary
jgmnt [87-1] (gm) [Entry date
06/04/96}

MOTION by intervenor National
Resources, intervenor WA Environ
Coun, intervenor Ocean Advocates Inc
for summary jgmnt; O.A. REQ'D
NOTED FOR 7/19/96 (gm) [Entry date
06/04/96}

MEMORANDUM by intervenor in

support of motion for summary jgmnt
[102-1] (gm) [Entry date 06/04/96]

MOTION by plaintiff Intertanako for
summary jgmnt; O.A. REQ'D NOTED
FOR 7/19/96 (gm) [Entry date
06/04/96]

DATE
6/3/96

6/3/96

7/2/96

7/3/96

7/3/96

NO.

107

113

116

117

JA-7

PROCEEDINGS

MEMORANDUM by ss opiaintiff
Intertanko in support of motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
06/04/96] [Edit date 06/05/96]

APPENDIX VOLUME I thru IV filed
by plaintiff Intertanko re motion for

summary jgmnt [105-1] (FILED IN

EXPANDOS) (gm) [Entry date
06/04/96]
OPPOSTION (RESPONSE) by

defendant James H. Krider to motion
for summary jgmnt AND JOINDER of
"State Defts" OPPOSITION TO

Summary Judgment [105-1] (gm)
{Entry date 07/03/96]

MEMORANDUM OF POINTS AND
AUTHORITIES IN RESPONSE by
plaintiff Intertanko to motion for
summary jgmnt [102-1] (FILED IN
EXPANDO) (gm) [Edit date 07/08/96]

MEMORANDUM IN OPPOSITION
(RESPONSE) by plaintiff Intertanko to
motion for summary judgment [99-1]
(FILED IN EXPANDO) (gm) [Edit
date 07/08/96]

DATE
7/3/96

7/3/96

7/3/96

7/15/96

7/15/96

7/15/96

NO.

118

119

121

131

132

134

JA-8

PROCEEDINGS

MEMORANDUM OF POINTS AND
AUTHORITIES IN RESPONSE by
plaintiff Intertanko to motion for partial
summary jgmnt [87-1] (FILED IN
EXPANDO) (gm) [Edit date 07/08/96]

RESPONSE by intervenor to motion

for summary jgmnt [105-1] (gm) [Entry
date 07/08/96]

RESPONSE by State defendants to
motion for summary jgmnt; [105-1]
(gm) [Entry date 07/08/96]

REPLY by plaintiff Intertanko TO
Intervenors RESPONSE to motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
07/17/96] [Edit date 07/17/96]

REPLY by plaintiff Intertanko TO State
Defts RESPONSE to motion for
summary jgmnt [105-1] (FILED IN
EXPANDO) (gm) [Entry date
07/17/96}

REPLY by State Defts TO pltf
Intertanko's RESPONSE to motion for

partial summary jgmnt [87-1] (gm)
[Entry date 07/17/96]

- —

DATE
7/15/96

9/24/96

9/24/96

9/24/96

9/27/96

NO.

136

147

148

150

154

JA-9

PROCEEDINGS

REPLY MEMORANDUM by
intervenor IN SUPPORT OF motion

for summary jgmnt [102-1] (gm) [Entry
date 07/17/96]

MOTION by intervenor WA Environ
Coun to supplement the summary
judgment record NOTED FOR
10/11/96 (gm) [Entry date 09/25/96]

MEMORANDUM by intervenor WA
Environ Coun in support of motion to
supplement the summary judgment
record [147-1] (gm) [Entry date
09/25/96]

SUPPLEMENTAL DOCUMENTS in
support of AND IN OPPOSITION to
Summary Judgment by intervenor WA
Environ Coun to [105-1] (gm) [Entry
date 09/25/96]

RESPONSE by plaintiff Intertanko to
motion to supplement the summary
judgment record [147-1] (gm) [Entry
date 09/30/96]

DATE
9/30/96

10/7/96

10/9/96

10/22/96

NO.
156

157

159

160

JA-10

PROCEEDINGS

MINUTE ORDER: by direction of
Judge John C. Coughenour
GRANTING Intervenors motion to
shorten time and accompanying motion
to supplement the summary judgment
record with additional documents. The
documents submitted by intervenors
and the documents submitted by pltf
with its response to intervenors' motion
to supplement are hereby added to the
summary judgment record. [147-1]
[151-1], (cc: counsel, Judge) (gm)

STATEMENT OF ADDITIONAL
AUTHORITIES by state defendants
(Attachment) (kerr)

MINUTES OF ARGUMENT: JCC;
Dep. Clerk: Julie Mahnke; CR:
Stanley-Knight (Flygare); Attys present
Henry Jameson, Jonathan Benner,
William Collins, Jeff Needle, Sean
Connaughton; cns] heard. Ct will issue
a written decision. (rs) [Entry date
10/10/96]

MOTION by plaintiff Intertanko to
supplement the record on summary
judgment NOTED FOR 11/8/96 (gm)
{Entry date 10/23/96]

DATE
10/22/96

11/1/96

11/18/96

NO.

161

166

179

JA-11

PROCEEDINGS

MEMORANDUM by ss pilaintiff
Intertanko in support of motion to
supplement the record on summary
judgment [160-1] (gm) [Entry date
10/23/96]

RESPONSE by defendant Mike Lowry,
defendant Christine O Gregoire etc to
motion to supplement the record on

summary judgment [160-1] (dm) [Entry
date 11/04/96]

ORDER by Judge John C. Coughenour
GRANTING pitf's motion to
supplement the record on summary
judgment. [160-1], DENYING dft
Krider's motion for summary jgmnt;
[105-1] GRANTING dft's &
intervenor's motion for summary
jgmnt; [102-1] DENYING pltf's motion
for summary judgment [99-1],
GRANTING dft's motion for partial
summary jgmnt; [87-1] This action is
hereby DISMISSED and the Clerk of
the Court is directed to enter judgment
accordingly. Case terminated. (cc:
counsel, Judge, JM) (dm)

DATE
11/20/96

12/11/96

NO.
180

182

JA-12

PROCEEDINGS

JUDGMENT: by court the motions for
summary jgm filed by dfts and
intervenors are GRANTED and the
motion for summary jgm filed by
Intertanko is DENIED. This action is
DISMISSED (cc: counsel, Judge, Jgm.
Book) Entered on 11/20/96 (rs)

NOTICE OF APPEAL by plaintiff
Intertanko form Dist. Court decision
[179-2, 180] (cc: CCA, JCC, Counsel)
(Ib) [Entry date 12/14/96]

AUG 25 1993

State of Washington
Office of Marine Safety
711 State Ave., NE
Olympia, WA 98504-2407

Dear Ms. Herman:

In previous recent correspondence, I advised you of my
concern regarding the application of certain provisions of
Washington State law and their application to Canada-bound
vessels transiting the Strait of Juan de Fuca. My concern
focuses on some actions that may be taken by your office that
agreements, each of which may be more beneficial overall in
protecting the environment. I hope that we can come to a
workable solution among all three governments to resolve
what I see as a near term conflict between the application of

As a legal matter, I would call your attention to the 1979
Canada-United States Agreement for a Cooperative Vessel
Traffic Management System for the Juan de Fuca Region.
Under that Agreement, the Parties have recognized the
desirability of compatibility in their respective national
regulations bearing on marine safety and environmental
protection applicable to vessels using the cooperative vessel
traffic management system (CVTMS). Specifically, Canada
and the United States have agreed that -

JA-14

In applying its regulations to vessels proceeding
through its portion of the applicable waters solely en
route to or departing from a port of the other Party,
will consider compliance with the requirements of
the other Party to be effectively equivalent to
material compliance with its own r-tidal
(permanently-submerged) habitats as well. This system is
proving useful in mapping the shorelines of the state,
preparing for oil spills, and making decisions on potntial
locations of marine preserves. Each shoreline type can be said
to provide different "functions" to human societies and to
biological ecosystems; for instance, sandy beaches provide
wonderful recreational opportunities while mudflats with
eelgrass provide habitat for juvenile crabs and salmon The
discussion below reviews some of these functions as well as
the intrinsic values of the habitats themselves.

The coastline of Washington state is characterized by high
habitat diversity. The outer coast of Washington has shoreline
habitats consisting largely of wave-exposed rocky headhnds,
separated by short to long stretches of sandy beaches or mixes
of gravel and sand. It also includes two very large
ecologically rich estuaries (Grays Harbor and Willapa Bay),
as well as the Columbia River estuary. In addtion,
Washington waters include the "inland sea” of Puget Sound,
characterized by low wave exposure but relatively high
currents, and containing a rich mix of habitat types from
calm, muddy bays to open rocky shores. Marshes and other
high-shore wetlands, while suffering the degradation and
disappearance common all over the country, can still be ‘ound
both in Puget Sound and in the outer coast estuaries. Finally,
the Strait of Juan de Fuca comprises a transition zone beween
the highly wave-exposed coastal region and the quieter Puget
Sound waters.

JA-139

4. All of the shoreline types of Washington could be
deemed as having some "value", both intrinsic and in terms
of human usage. Intrinsic or ecosystem-level values include:

a. Biodiversity. Washington's shorelines are among the
most diverse in the U.S. ; several hundred species of seaweeds
and animals, mostly invertebrates, can be found in these
habitats. This diversity relates in part to the productivity of
the region (see below), and to the fact that Washington is in
a transition zone between two biogeographic provinces, with
species present from both. In addition, the undisturbed nature
of some areas of shoreline (especially on the outer coast) helps
maintain this diversity. We are increasingly recognizing that
treating cancer are found in obscure marine sponges, little
crustaceans turn out to be important fish food, and the basic
complexity of natural systems may well provide a buffer
against permanent disruption by human disturbance. As with
tropical rainforests, events that threaten this biodiversity may
have long-term and large-scale consequences that we cannot
yet define.

b. Productivity. The marine and estuarine waters of
Washington are among the most productive in the U.S.
Seasonal (summertime) upwelling of nutrient-rich waters plus
inputs of nutrients from the estuaries support this productivity
by allowing large plankton blooms and rapid algal growth.
This productivity, in turn, supports diverse and dense
populations of animals, including many commercially
important species. While much of this productivity comes
from offshore and subtidal plankton and kelp beds, shoreline
populations of seaweeds, eelgrass, and microscopic algae also
contribute substantially to local productivity.

¢. Nursery And Feeding Areas for Other Species. Many
Shoreline habitats are used for critical life-processes by

JA-140

species that we think of as living ‘elsewhere’, such as subtidal
fishes, marine mammals, and birds. Examples of these uses
include: gravel beaches are used as spawning areas by surf
smelt; low-shore eelgrass beds are used as nursery areas by
commercially important crabs, and they provide protection
from visual predators and a rich food source for juvenile
salmon and other fishes; rocky shores provide haul-out areas
for seals and sea lions - these places are important for resting
and warming for these animals; extensive mudflats provide
critical feeding areas for numerous species of shorebirds that
consume the small worms and crustaceans in the mud - the
coastal estuaries, in particular, are essential stopping and
‘refueling’ areas for millions of waterbirds migrating up and
down the west coast.

Humans use shorelines in a variety of ways, and have
done so in the Pacific Northwest for over a thousand years.
Such uses include:

1) Education and Research. Groups from the
preschool to the postgraduate level use Washington shoreline
as natural classrooms or as collecting sites for research
purposes. Public beaches such as state parks are particularly
heavily used in this regard.

2) Commercial harvest of edible species. Both
Native and non-native fisherman harvest organisms from
shorelines; at this time, the primary intertidal (as opposed to
subtidal) commercial harvests are for clams (hardshells) and
oysters. Other harvested species include sand shrimp, and
there is discussion of future commercial harvest of other
species such as seaweeds, gooseneck barnacles, and mussels.

3) Tribal subsistence harvest. Many types of
shoreline organisms are used by members of Northwest tribes
for subsistence or ceremonial purposes.

JA-141

4) Recreational Harvest. Washington shorelines are
increasingly used by the public for recreational harvesting of
consumptive use of organisms on Puget Sound and other
shorelines has been great enough to lead to new harvesting
and licensing regulations.

5) Non-consumptive Recreational Use. Both
tourists and Washington residents use the shorelines of Puget
Sound and the outer coast. Many State and National parks
of relaxation. Boaters and SCUBA divers use these areas for
water access.

5. Sensitivity of Shoreline Habitats to Oil Spills.

Most or all of the ‘values’ of shoreline habitats described
above can be compromised by spilled oil. Thus virtually all
the shorelines in Washington are ‘sensitive’ to oil in some
way, from mudflats that have no harvestable species but are
used for feeding by many bird species, to stretches of sandy

beach that are ecologically depauperate but used by thousands
of visitors.

All forms of human use are clearly jeopardized by oil
coming ashore. Recreational use of oiled beaches is likely to
be low, and cleanup of beaches may alter the character or
appearance of the shore (e.g., by bulldozing away oiled sand)
so that normal use may not return quickly. Recreational and
subsistence harvest of all species should be curtailed after a
spill; even if target organisms are not killed, tissues are likely
to be tainted by oil, and some species (e.g., clams) retain oil
in their tissues for many months. In addition, if oil is
incorporated into the sediment (for instance in a mud flat),

JA-142

research has shown that animals will be constantly
recontaminated by oil leaching out of the sediment.
Commercial harvests are generally shut down entirely after a
spill; in Prince William Sound, the possibility that fish might
be tainted by oil drove down prices so that many fisherman
stopped fishing following the Exxon Valdez spill.

Intrinsic values of shoreline habitats are also damaged by
spills. Most types of marine invertebrates, seaweeds, and
seagrasses are known to suffer acute or sublethal damage from
oil, even at very low concentrations. Heavy oils can smother
invertebrates and plants, and toxic oils can kill most species
outright. Juvenile stages of animals are particularly
vulnerable. Large plants such as eelgrass and kelp that
provide habitat for other organisms can be damaged, leaving
other species ‘homeless’ even if they survive the oil
themselves. While there have been statements in the literature
about intertidal organisms being ‘hardy’ and thus able to
survive oil spills, the data argue against this assumption.
While these species have evolved to deal with drying,
freshwater runoff, freezing, and other physical extremes, oil
spills are not part of their evolutionary history.

There are inadequate data on recovery time of shoreline
habitats from spills to make firm generalizations, but many
habitats may suffer long-term damage. The exception may be
sandy beaches in highly wave-exposed areas; here, the oil is
likely to be removed quickly by wave action, and while the
organisms living there (mostly small worms and crustaceans)
are likely to suffer high mortality, most of them will
recolonize clean sand fairly quickly from other areas. In
contrast, wave-exposed rocky shores may similarly be
‘cleaned’ quickly by natural processes, but here there are
species that are long-lived (up to 20 years for mussels) and
slow-growing, and that sometimes do not disperse well from

JA-143

undamaged areas. Thus actual recovery of rocky-shore
communities to their pre-spill state may take years. This is
especially true because of the high biodiversity of these
shorelines; if rare species are killed, they may not recolonize
oa aae Salt marsh and mud flat habitats can be

by oil because it penetrates and persis*s in
sediments, potentially resulting in long-term toxic effects
(over 20 years in one well-studied case in Massachusetts: Teal
et al., 1992)

A 1992 study for the U.S. Coast Guard sought to define
areas of the Washington and Oregon coasts that would be
particularly sensitive to oil spills, based on habitat sensitivity ,
commercial and non-commercial value to humans, presence
of ‘special species’ such as marine birds and mammals, and
other parameters. It delineated 8 large "particularly sensitive”
areas in Washington state, including regions both in Puget
Sound itself, in the northern inland waters, and on the outer
coast. Thus there are no substantial parts of Washington's
navigable waters where oil spills are not of concern for the
health of shoreline habitats.

Reference:

Teal, J.M., J.W. Farrington, K.A. Burns, J.J. Stegeman,
B.W. Tripp, B. Woodin and C. Phinney, 1992. The West
Falmouth oil spill after 20 years: fate of fuel oil

compounds and effects on animals. Marine Pollution
Bulletin 24:607-614.

/s/ Megan N. Dethier
MEGAN N. DETHIER

Signed or attested before me, JoAnn R. Baker, by

JA-144

DATED this 31st day of May, 1996.
/s/ JoAnn R. Baker

NOTARY PUBLIC, in and for the State of Washington.

My commission expires: 3-28-99

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

HONORABLE JOHN C. COUGHENOUR

CAUSE NO. C95-1096

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,
v.

MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,

Defendants,
and

THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
and OCEAN ADVOCATES, INC.,

Intervenors.

AFFIDAVIT OF RONALD M. THOM
(Coastal Aquatic Vegetated Habitats in Washington State)
STATE OF WASHINGTON )

) ss.
COUNTY OF PIERCE )

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I, Ronald M. Thom, being first duly sworn on oath,
depose and state as follows:

1. I have been a Senior Research Scientist at Battelle
Marine Sciences Laboratory, Sequim, Washington, since
1990. I received a Bachelors degree in Biological Sciences in
1971, Masters degree in Biology in 1976, and Ph.D. in
Fisheries in 1978. My 21 years of professional experience
includes employment as a marine biologist (Los Angeles
County 1971-1974; U.S. Army Corps of Engineers 1980-82),
university teaching (1985-present), and university research
(University of Washington, 1978-80, 1982-1990). I have been
employed by local, state, and federal governments as a
biologist, and has served on a number of professional
committees. In 1985, I was elected chair of the Environmental
Protection Agency's Puget Sound Estuary Program Technical
Advisory Committee and served in that capacity for five
years. In 1990, I was invited to present a paper on habitat
restoration to NOAA’s Conference on Restoring the Nation's
Marine Environment. This conference initiated NOAA's
program in Marine Restoration. In 1993, I was invited by the
British Columbia/Washington Environmental Cooperation
Council to produce a joint paper with a Canadian scientist on
the status of coastal wetlands and habitats ix the Washington
and British Columbia Region. Based largely on this paper, the
British Columbia/Washington Marine Science Panel
eventually recommended habitat protection as the highest
priority issue among all marine environmental issues in the
region reviewed by the panel. I also serve as an Affiliate
Faculty at the University of Washington School of Fisheries
and Adjunct Faculty at Western Washington University. |
teach courses on Wetland Restoration at the University of
Washington Extension Program on Coastal Ecosystem
Management and Wetland Ecology for Western Washington
University at the Port Angeles Center.

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I have managed over 100 research proj involvi
coastal habitats and ecosystems. My Pa en benthic
primary production and nutrient fluxes; seagrass ecology;
physiology of estuarine plants; the effects of pollution on
nearshore marine systems in California, Washington, and
Alaska; habitat construction and restoration of marine and
estuarine systems; effects of climate change on estuarine
systems; and ecology of fisheries resources in nearshore
systems. Since 1974, the vast majority of my research has
been in Puget Sound and the coastal estuaries of Washington.
My doctoral dissertation was on the effects of sewage
pollution on marine algae near Seattle. In 1992, research led
by me produced tlie first study to document the effects of oil
on bull kelp. This study was conducted to investigate natural
resource damage assessment of the Tenyo Maru oil spill.

Since 1974, I have written over 100 documents including
technical reports, peer-reviewed articles, and book chapters.
In addition, I have given well over 200 professional
presentations on my research. My publications for the years
1994-1996, only, are listed here: 4

Antrim, L.D., A.B. Borde, R.M. Thom, and S. Britsch.
1996. Water Quality Study of the Agnew Constructed
Wetland for the Period July 1994 to June 1995. PNWD
22645. Prepared for Clallam Conservation District, Port
Angeles, Washington, by Battelle Marine Sciences
Laboratory, Sequim, Washington.

Simenstad, C.A., and R.M. Thom. 1996. "Functional

Equivalency Trajectories of the Restored Gog-Le-Hi-Te
Estuarine Wetland." Ecological Applications 6:38-56.

Thom, R.M. 1996. "CO,-Enrichment Effects on Eelgrass
(Zostera marina L.) and Bull Kelp (Nereocystis

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luetkeana) (Mert.) P. et R." Water, Air, and Soil
Pollution 88:383-391.

Antrim, L.D., J. Dillion, and R.M. Thom. 1995.
“Lincoln Park Shoreline Erosion Control Project:
Monitoring for Impacts on Eelgrass, Bivalves, and Bull
Kelp." To be presented at the Coastal Society 15th
International Conference: Seeking Balance, Conflict,
Resolution, and Partnership; July 15-17, 1996, Seattle,
Washington.

Antrim, L.D., and R.M. Thom. 1995. Lincoln Park
Shoreline Erosion Control Project: Monitoring for
Eelgrass, Eelgrass Transplant Plots, Bull Kelp, and
Surface Substrate, 1995. PNL-10857. Prepared for the
U.S. Army Corps of Engineers, Seattle District, by
Battelle Marine Sciences Laboratory, Sequim,
Washington. Published by Pacific Northwest National
Laboratory, Richland, Washington.

Antrim, L.D., R.M. Thom, W.W. Gardiner, V.I.
Cullinan, D.K. Shreffler, and R.W. Bienert. 1995.
"Effects of Petroleum Products on Bull Kelp (Nereocystis
luetkeana P. et R.)." Marine Biology 122:23-31.

Shreffler, D.K., and R.M. Thom. 1995. "Estuarine
Restoration: A Landscape Perspective." In Puget Sound
Research “95 Proceedings, Volume 2, January 12-14,
1995, Bellevue, Washington; published by Puget Sound
Water Quality Authority, Olympia, Washington.

Shreffler, D.K., R.M. Thom, and K.B. Macdonald.
1995. “Shoreline Armoring Effects on Biological
Resources and Coastal Ecology in Puget Sound." In
Puget Sound Research “95 Proceedings, Volume 2,
January 12-14, 1995, Bellevue, Washington; published

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by Puget Sound Water ity A i i
dee 7 Quality Authority, Olympia,
Shreffler, D.K., R.M. Thom, M.J. Scott, K.F. Wellman,
M.A. Walters, and M. Curan. 1995. National Review of
Non-Corps Environmental Restoration Projects. PNL-
10784. IWR Report 95-R-12. Prepared for the U.S.
Army Corps of Engineers, Institute for Water Resources,
by Battelle/Marine Sciences Laboratory, Sequim,
Washington, Pacific Northwest Laboratory, Richland,
Washington.

Simenstad, C.A., and R.M. Thom. 1995. "Spartina
alterniflora as an Invasive Halophyte in Pacific
Northwest Estuaries." Hortus Northwest.

Thom, R.M. 1995. "Implications for Restoration: Light,
Temperature and Enriched CO, Effects on Eelgrass
(Zostera marina L.)." In Puget Sound Research ~95
Proceedings, Volume 2, January 12-14, 1995, Bellevue,
Washington; published by Puget Sound Water Quality
Authority, Olympia, Washington.

Thom, R.M. 1995. Year Five Eelgrass (Zostera marina
L.) Transplant Monitoring in Grays Harbor, Washington.
Letter report to the U.S. Army Corps of Engineers,
Seattle District, by Battelle/Marine Sciences Laboratory,
Sequim, Washington.

Thom, R., B. Miller, and M. Kennedy. 1995. "Temporal
Patterns of Grazers and Vegetation in a Temperate
Seagrass System." Aquatic Botany 50:201-205.

Thom, R.M., and D.K. Shreffler. 1995. "The Ecological
Consequences of Accelerated Sedimentation on Estuarine
Processes, Estuarine Organisms, the Gain and Loss of
Certain Habitats." PNWD-SA-4202 A. Presented at the

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Forum on Impacts of Erosion and Sedimentation in the
Tillamook Bay and its Watershed, Tillamook Bay
National Estuary Project, January 12, 1995, Garibaldi,
Oregon.

Thom, R.M., D.K. Shreffler, and J. Schafer. 1995.
Mitigation Plan for Impacts to Subtidal Vegetation
Associated with Reconstruction and Expansion of the
Ferry Terminal at Clinton, Whidbey Island, Washington.
Prepared for the Washington Department of
Transportation, Olympia, Washington, by
Battelle/Marine Sciences Laboratory, Sequim,
Washington; Battelle, Pacific Northwest Laboratories,
Richland, Washington.

Thom, R.M., D.K. Shreffler, C. Simenstad, A. Olson,
and S. Wyllie-Echeverria. 1995. Mitigating Impacts of
Ferry Terminals on Eelgrass in Puget Sound. Presented
at the 13th International Estuarine Research Federation
Conference, November 12-16, 1995, Corpu Christi,
Texas.

Levings, C.D., and R.M. Thom. 1994. "Habitat Changes
in Georgia Basin: Implications for Resource Management
and Restoration.” In: Review of the Marine Environment
and Biota of Strait of Georgia, Puget Sound and Juan de
Fuca Strait - Proceedings of the BC/Washington
Symposium on the Marine Environment, January 13-14,
1994, Vancouver, British Columbia, Canada.

Shreffler, D.K., and R.M. Thom. 1994. "Landscape-

Based Procedure for Estuarine Habitat Restoration." -

Restoration and Management Notes 12 (2):198.

Thom, R.M., T.L. Parkwell, D.K. Niyogi, and D.K.
Shreffler. 1994. "Effects of Graveling on the Primary

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Productivity, Respiration, and Nutrient Flux of Two
Estuarine Tidal Flats." Marine Biology, 118:329-341.

Thom, R.M., D.K. Shreffler, and K.B. Macdonald.
1994. Shoreline Armoring Effects on Coastal Ecology and
Biological Resources in Puget Sound. Preliminary report
prepared for the Washington Department of Ecology
Shorelands and Coastal Zone Management Program by
Prepared for by Battelle/Marine Sciences Laboratory,
Sequim, Washington; Battelle, Pacific Northwest
Laboratories, Richland, Washington, and CH2M Hill,
Seattle, Washington.

Thom, R.M., and R. Zeigler. 1994. "Case Histories:
Estuarine Studies. Elk River Saltmarsh Restoration." In:
Partnerships & Opportunities in Wetland Restoration;
Proceedings of a Workshop. April 16-17, 1992, in
Seattle, Washington. Produced by the US.
Environmental Protection Agency, the U.S. Fish &
Wildlife Service, the U.S. Army Corps of Engineers, and
the University of Washington. Seattle.

Wyllie-Echeverria, S., and R.M. Thom. 1994. Managing
Seagrass Systems in Western North America. Alaska Sea

Grant College Program, University of Alaska Fairbanks,
Fairbanks, Alaska.

I. Introduction

The objective of this affidavit is to describe the major
coastal habitats occurring along the shorelines of Washington
State, in particular those in the inland waters. The review is
directed at the types of vegetated habitats that would be
vulnerable to direct exposure to oil spilled into the marine and
estuarine waters of the State. The inland waters include the
Strait of Juan de Fuca, the San Juan Islands, Puget Sound,
Hood Canal, as well as coastal estuaries such as Grays

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Harbor, Cotumbia River, and Willapa Bay. This reviev is
based upon personal experience and research, as wel as
published and unpublished information reviewed by the auhor
and cited in his written documents.

Il. Potential Areas of Exposure

The vegetated habitats that could be directly expose to
spilled oil occur on shorelines from approximately the wper
limits of the spray zone at about +4 m relative to Mean
Lower Low Water (MLLW) down to a subtidal (i.e., just
below the intertidal zone) depth of approximately -1'! m
MLLW. The elevation range includes the intertidal one
(approximately -1 to +3.5 m MLLW), which is coveredand
exposed as the tide rises and falls. The lower depth limt of
vegetated habitats is determined by the amount of lightthat
reaches the bottom. Plants will not be present where ight
cannot adequately support their photosynthesis. Becaus: oil
floats on the surface of the water, the intertidal zone ha: the
greatest probability of being impacted by spilled oil that
impacts a shoreline. However, heavier fractions of oil nay
sink or become suspended in the water and impact subidal
habitats. Strong winds and surf can potentially carry oilinto
the spray zone which occurs immediately above the wper
limits of the intertidal zone.

Although most direct exposure to oil would be in pen
marine and estuarine areas where salinities range from aout
35 parts per thousand (ppt) to about 5 ppt, the influence c the
tide can reach well up into a river where water salinitie: are
0 ppt.

Ill. Habitat Types and Distribution
This is a variety of vegetated coastal habitat typs in

Washington State. Although there are a numbe: of
classification systems for these habitats, the eight major

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vegetated habitats in the areas include: seaweed beds,
mudflats, sandflats, seagrass meadows, kelp forests, salt
beds occur over the broadest range of elevations, from the
splash zone down to subtidal depths. Mudflats and sandflats
occur in the intertidal and shallow subtidal zone. Seagrasses
occur in the mid-intertidal zone down to shallow subtidal
depths. Kelp forests occur in the very low intertidal zone
down to subtidal depths. All marshes occur primarily in the
upper intertidal zone and form the interface with terrestrial

The shoreline of Washington State is ringed by vegetated
habitats as described above, unvegetated coarse gravel and
cobble substrata, as well as developed (e.g., rip rap, pilings)
structures. Even developed structures can contain viable
vegetation, and the coarsest erosional surfaces (heavy cobble)
can at times be vegetated with seaweeds and microalgae.
Shoreline vegetation covers on the order of 2,500 miles of the
State’s coast. In general, marshes, mudflats and sand flats,
and seagrass meadows are found in embayments, at the
mouths of rivers and streams, and in other similar areas
protected from high waves. Seagrass extends along most of
the shoreline areas in Puget Sound and the Strait of Juan de
Fuca, and is found in great abundance in Grays Harbor,
Padilla Bay, and Willapa Bay. Kelp and seaweeds can be
found in protected areas as well as coastlines exposed to high
wave energy. Kelp and seaweeds require hard substrata such
as rock for attachment. Microalgae (e.g., single celled
diatoms) occur on most substrata and as epiphytes (i.e.,
attached to larger plants). They are particularly important
components of sand and mudflat habitats, as well as seagrass

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IV. Diversity

The region represents one of the richest locations on
earth in terms of numbers of species of coastal aquatic plants.
The reasons for this diversity are not fully understood but are
likely related to the oceanographic conditions (i.¢., mixing of
water masses), temperate climate, and geology of the
shorelines. Over 600 species of seaweed have been recorded
from the Washington-British Columbia region. There are two
major brown seaweed species that form kelp forests in the
region, but several other large brown seaweeds are often
grouped with kelp. There are four species of seagrasses, of
which eelgrass is one. Tidal and salt marshes are not well
documented in terms of numbers of species, but the records
indicate that the number of species is at least as high as in the
most diverse marshes in the world. Salt marshes are
geologically “new" in the region. Uplift and subsidence
processes that occur along the coast caused by earthquakes
destroy extant marshes every 300-700 years. The marshes
then rebuild themselves at a slow rate from this disturbance.
Finally, the diatom flora is extremely diverse and has been
studied very little. The few studies that have been done
suggest that up to 50 species can be found within a very small
area (e.g., 1 square centimeter) in some coastal areas.

V. Ecological Functions

The major ecological function of coastal vegetated
systems is primary production. This means that the plants
produce organic matter (i.e., fix carbon) using the energy
from the sun and minerals from the water and the air. Coastal
aquatic vegetation are among the most productive plant types
in the world. Studies in Washington State indicate that the
some seaweeds are capable of production rates as high as 900
grams of carbon per square metre per year. Seagrass
meadows, kelp forests, tidal marshes are all capable of very

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have productivity rates that are intermediate among coastal
plants. Bull kelp, which forms the major component of kelp
forests in the State, essentially grows from a microscopic size
to up to 20 meters in length in three months during spring and
early summer. In order to support this growth, kelp fixes
carbon at an extremely high rate. Coastal plants are the
dominant source of energy (in the form of organic matter) to
the nearshore coastal aquatic food webs. Without this source
of energy, nearshore food webs would have to depend upon
energy inputs from terrestrial systems and planktonic systems,
which may not be adequate to support this community.

Coastal vegetated habitats perform several other
of nutrients, flood attenuation, and ground water recharge.
Marshes and seagrass meadows trap sediment transported
from rivers and streams as well as imported from the ocean.
By trapping sediments, the elevation builds gradually in these
habitats. Eventually the elevation extends above the highest
reaches of the tides to form upland habitat. Nutrients (e.g.,
nitrate and phosphate) are both utilized and produced in
coastal habitats. These processes affect the amount of
nutrients in the water, which has a subsequent effect on the
plankton-based communities in deeper areas. Wetlands (i.e.,
tidal fresh water marshes) can serve to store flood waters
during periods of extreme rainfall. Human residences can
suffer extreme flood damage in areas where tidal marshes
have been removed from the system (e.g., placed behind
dikes).

VI. Associated Resources

The primary ecological functions of coastal habitats for
animals resources are: (1) food production; (2) refuge from
predation; and, (3) habitat for reproduction and juvenile

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rearing. Food is provided directly to animals through
herbivory by primary consumers. Herbivory has been proven
to be important in seaweed dominated systems, kelp forests,
and in seagrasses. In particular, black brandt geese feed
almost exclusively on eelgrass. Herbivory has not been
studied in other systems to any great degree. Much of what is
not eaten directly enters the detrital (dead organic matter)
pool. Detritus is broken down into particles that can be
readily utilized in the food web. Detritus is the major pathway
for organic matter produced by coastal vegetation to reach the
aquatic food web in the region. Another major source of
organic matter to the food web is dissolved organic matter
(DOM). DOM is often exuded from growing plants directly
into the water where it is utilized by microorganisms that
make the material utilizable by larger animals.

The coastal habitats form an continuum from the
terrestrial (upland) system to the deep marine system. In terms
of animal resources, this means that migratory animals can
benefit from these habitats throughout their migration route.
An example is juvenile salmon that are outmigrating to the
open ocean. Juvenile salmon utilize, for feeding and refuge,
vegetated aquatic habitats along their migration route from
and eelgrass meadows. Studies have proven the critical
importance of coastal habitats in providing prime feeding and
refuge areas for juvenile salmon.

Shorebirds utilize food on mudflats. Perhaps the most
dramatic example of massive utilization is found in Grays
Harbor. There, shorebirds on the migration to Alaska, feed in
the mudflats at low tide and rest in the marshes at higher tides
in Bowerman Basin. Some of the highest densities of
shorebirds anywhere have been recorded in Bowerman Basin.

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much of their life history. Newly settled crabs will hide and
feed in eelgrass meadows until they grow large enough to
protect themselves from predation. Crabs often mate in
eelgrass also.

Eelgrass meadows and seaweed beds are prime spawning
areas for herring. Herring lay their eggs directly on the
vegetation. Kelp forests as well as some seaweed beds and
eelgrass meadows harbor populations of rockfish and have
been documented to be critical habitat for juvenile fish of
numerous species.

VII. Vulnerability to Spilled Petroleum

Research from elsewhere as well as limited research in
Washington State indicate that the major vegetation types are
all vulnerable to the initial and long-term negative effects of
oil spilled in the marine environment. This includes impacts
to the primary ecological function, primary production, as
well as subsequent effects on other functions in support of
animal resources in the State. It has been well documented
that animal resources that utilize vegetated habit are
susceptible to negative impacts of petroleum in the marine and

Oil spilled in the marine and estuarine waters in
Washington State can reach all coastal vegetated habitats.
Since most of the oil fraction floats at the surface of the water,
plants in the intertidal zone will be exposed to the oil as the
tide moves up and down the shoreline. Floating oil would also
contact any subtidal plants such as kelp that have parts of the
plant which float at the surface. Because some oil fractions
are mixed to deeper layers in the water and heavier fractions
can sink, strictly subtidal plants such as some seaweed species
also can be directly exposed to spilled oil. Species that occur

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very high in the intertidal zone or in the splash zone would be
exposed primarily during very high tides and during periods
of high waves or winds.

Research elsewhere has shown that vegetated habitats that
occur in more protected areas will trap spilled petroleum for
longer periods of time than habitats in more exposed areas.
Hence, tidal freshwater marshes, saltmarshes, mud and sand
flats, some seaweed beds and eelgrass meadows would be
vulnerable to trapping oil for extended periods of time. Kelp
forests and exposed rocky intertidal seaweed beds would
potentially not trap oil for as long a period. Although
weathering and microbial processes will actively degrade
trapped oil, damage to plants can continue for extended
periods of time in areas where the petroleum is trapped in
vegetation and sediment.

Research on the effects of spilled oil on marine and
estuarine vegetation in Washington State is limited. Petroleum
products frora the Tenyo Maru oil spill contacted coastal bull
kelp forests and other habitats within a week of the accident.
Observations in the field indicated that the floating portions of
the kelp in the vicinity of visible petroleum products were
bleached and apparently dying. Bleaching of kelp indicates
loss of pigments such as chlorophyll that are responsible for
primary production. Research conducted subsequent to the
spill verified that the products spilled could have caused
bleached and killed the kelp. Exposure of kelp to the products
during these experiments were relatively short term (4 to 24
hours). The research also showed that weathered and
unweathered products (diesel, bunker C, crude) could cause
bleaching and death of the plants, and that weathered diesel
was the most toxic to the plants. Of significance is that the
portion of the kelp that was damaged first was in the
productive region of the plant. Therefore, exposure of kelp to

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these petroleum products prior to reproduction could affect
reproductive activity and recruitment of plants in the next
year.

VIII. Summary

Coastal aquatic vegetated habitats in Washington State
cover approximately 2,500 miles of the State’s coast. Potential
areas of exposure to spilled oil range from the spray zone (+4
m MLLW) to subtidal areas. Direct exposure to spilled oil
could occur in vegetated habitats in marine, estuarine, and
freshwater habitats. The major vegetated habitats in
Washington State are seaweed beds, mudflats, sandflats ,
seagrass meadows, kelp forests, salt marshes, brackish
marshes, and tidal fresh marshes. These habitats serve critical
processing, sediment trapping, and flood attenuation. For
animal resources, coastal vegetated habitats provide food,
refuge, and habitat for reproduction and juvenile rearing. The
importance of vegetated coastal habitat to commercially
important resources such as salmon, herring, and Dungeness
crab has been well documented in technical literature. All
these habitat types are susceptible to damage from spilled
petroleum products. Damage to kelp beds has been
documented after short-term exposure to petroleum (300,000 birds during the breeding season,
> 1,000,000 birds during the winter, and > 5,000,000 birds
during migration. These figures are extrapolated from partial
figures given in Wahl et al. (1981), Wahl (1984), and
Brueggeman et al. (1992).

5. Seabird Categories. Birds that use coastal waters are
of two types: (1) obligate marine species, in which all
populations use salt water; and (2) facultative marine species,
in which only some populations use salt water, the others
occurring in fresh water. Sixty-three (50.4%) of our marine
species are obligate; examples include most loons, all
shearwaters, Brandt's and Pelagic cormorants, sea ducks, and
many shorebirds, and all alcids. Sixty-two species (49.6%)
are facultative; examples include Common Loon, herons,
Double-crested Cormorants, and many waterfowl.

In both of these groups, there are resident marine species,
those that are present in our waters throughout the year, and
seasonal marine species, those in which breeding occurs in
freshwater or upland environments and marine environments
are used only during the nonbreeding season. There are no
marine-breeding bird species that move to freshwater or
upland habitats after the breeding season, although individuals
of some species do so.

Breeding species are of special significance, as they must
have adequate breeding habitats and nest sites as well as
adequate foraging conditions and food. The 20 species (16%
of the total) that breed on the coast of Washington have
entries under breeding habitat and breeding sites in the
Appendix.

ity enka Re ame

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6. Seasonal Patterns. Seasonality is the rule in natural
systems. Few of the marine birds of Washington are equally
common in every month. Even those that are resident-present
all year-vary in numbers seasonally because of the influx of
additional birds from the south in summer, from the north in
winter, or passing in either direction during the spring and fall
migration periods. Fifteen species (12%), including our
familiar Great Blue Heron, Bald Eagle, and Glaucous-winged
Gull, are present in numbers throughout the year.

7. Summer Visitors. Fifteen species (12%) are present
primarily in summer. Relatively few seabird species move
north into Washington to breed, as most of the breeding
seabirds are resident, but conspicuous exceptions to this
include the Osprey, Snowy Plover, and Caspian Tern, all of
which winter to the south. Some species that are pelagic in the
nonbreeding season move inshore to coastal islands to nest
while continuing to feed at sea, for example, Fork-tailed
Storm-Petrel, Cassin’s Auklet, and Tufted Puffin.

The richness of the region is indicated by the number of
seabirds, both species and individuals, that breed elsewhere
but visit Washington waters during the summer. Some species
that breed on the coasts of northern Mexico and California
move north after their breeding season to summer in the more
productive waters of the Northeast Pacific, for example,
Brown Pelican, Heermann’s Gull, and Elegant Tern. These
species are present in even larger numbers when El Nino
conditions diminish the productivity of more southerly waters.
Finally, many southern-hemisphere seabirds move into our
region in summer, their nonbreeding season. These include
Pink-footed, Flesh-footed, Buller’s, Sooty, and Short-tailed
shearwaters, and South Polar Skua. That individuals of some
of these species fly over 6,000 miles to reach our waters is
testimony to their productivity.

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8. Winter Visitors. Sixty species (48%) are resent
primarily during the winter months. Depending »n the
species, migrants may arrive as early as July (numerous
shorebirds) or as late as early November (some divinglucks);
most depart in April and May. This huge influx ofwinter
seabirds include species that breed in Alaska’s marinevaters,
Canadian and Alaskan Arctic tundra environmen, and
freshwater and grassland habitats throughout the intrior of
northwestern North American. The nesting requirerents of
these freshwater species precludes them from nestingon our
coast, but our rich waters support their populations duing the
nonbreeding season.

Wintering water birds that come from freshwar and
upland habitats farther north and/or east include 3 spcies of
loons, 5 grebes, 25 waterfowl, the American Cot, 17
shorebirds, and 8 gulls. Among them are our most common
winter birds.

Relatively few seabirds move into the area frommarine
waters to the north, but they include large numers of
Northern Fulmars, Black-legged Kittiwakes, Cmmon
Murres, and Ancient Murrelets. Surprisingly, equily large
numbers of birds move in from the south, includig Brandt's
and Pelagic cormorants and additional Comma Murres. The
magnitude of migration into the area fra both north and
south (with tens of thousands of murrs coming from both
directions to winter in the Strait oJuan de Fuca) clearly
indicates the tremendous value o®ur waters to seabirds.

9. Migrants. Many watt birds use Washington waters
in spring, fall, or both, 2 stopover habitat during short or
long migratory flights.-hirty-five species (28 %) are present
primarily during sprig and/or fall, but many species present
in other seasons 2°0 exhibit substantial migratory movements
along our coas’ For example, California Gulls both breed and

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winter in Washington, perhaps a few thousand of the former
and hundreds of the latter; however, their coastal migrations
are in the tens of thousands.

The magnitude of seabird migrations must be seen to be
believed. At times, especially during April and May and again
from July through October, migration can be observed
directly and migrants can be censused accurately, as single
birds and flocks of dozens to hundreds move past observers
stationed on projecting points and jetties on the outer coast.
Movements in excess of 100,000 birds/day have been
recorded.

Shorebird migration is similarly spectacular. Grays
Harbor and Willapa Bay provide food for hundreds of
thousands of individuals of three species of sandpipers and
thousands of individuals of an additional 18 species of
shorebirds each spring, a spectacle that has generated
sufficient public interest to warrant a Grays Harbor Shorebird
Festival each year.

10. Seabird Diets and Breeding Success. Three major
diet categories support Washington's seabird populations:
plants, invertebrates, and fishes. Only a few species of
waterfowl are obligate plant feeders, but they include locally
abundant species such as Tundra Swan, Snow Goose, Brant,
and American Wigeon. Invertebrates form the primary food
for many species of waterfowl and most shorebirds. Fishes
predominate in the diet of diving birds such as loons, grebes,
cormorants, and alcids, and birds that fish from the air such
as gulls and terns. Some species combine two of these three
groups in their diets.

Clearly, a persistent base of food resources is essential to
maintaining populations of marine bird species. A collapse in
numbers of any organism at any level of the food web

JA-168

represents a potential threat to the concentrations that
characterize seabirds at nesting colonies and favored feeding
areas. They may withstand local resource collapse but,
especially when tied to breeding areas, may not be able to
travel sufficiently far to find food; complete breeding failure
over fairly large areas may ensue. Fortunately, seabirds are
long-lived and are thus not severely affected by single
breeding failures, but multiple breeding failures, as from
long-term perturbation by human activities, have more serious
consequences.

11. Ojil-Spill Vulnerability. Obviously, the birds most
vulnerable to oil spills are the obligatory marine species; a
spill at any season is likely to affect them and, depending on
its extent, 'ikely to have substantial population effects. For
faculative marine species, only some populations would be
affected, their risk in direct proportion to the proportion of
their populations on salt water. Finally, seasonal marine
species would be affected only during appropriate seasons,
although oil-spill effects on feeding substrates or food
resources could easily persist until the arrival of these species
in the appropriate season.

Seabirds are also differentially vulnerable to oil spills by
way of their foraging habits. Those that remain on the water,
feeding either on the surface (many waterfowl) or by dividing
beneath it (loons, grebes, cormorants, diving ducks), are more
vulnerable than those that remain out of the water most of the
time, feeding from the water surface in flight (gulls) or on the
shore (shorebirds). It is noteworthy that diving birds such as
loons, grebes, and alcids have always suffered the most
substantial mortality from spills.

Manuwal et a.!. (1979) devised a Bird Oil Index that
takes into account differential vulnerability to oil spills.
Species that possess any of the following characteristics are

JA-169

considered especially vulnerable: small populations, low
reproductive rate, restricted feeding distribution, highly
concentrated nesting areas, narrow winter distribution aquatic
roost sites, occurrence in flocks, and diving rather than flying
from danger Species considered especially vulnerable by
these criteria are so indicated in the Appendix.

12. Background Material.

a) Marine Bird Habitats. Marine habitats can be
viewed as a series wf zones paralleling the shoreline. Habitats
that are treated as discrete by seabirds imclude the following:
open water surface, open water subsurface. subtidal,
characteristics of the bottom and the shore, define the habitats
that seabirds use. Open water can be divided into protected
and unprotected and with or without strong tidal currents:
each type has its own seabird species. Naturalists know that
if they visit an exposed rocky headland, they will find
Harlequin Ducks and Black Turnstones; similarly, in a salt
marsh there will be at Least Sindpipers and Green-winged
Teals, in a sand-bottomed bay Western Grebes and White-
winged Scoters. Some species, especially predators such as
Bald Eagles and large gulls, roam across most habitat types.

b) Unprotected vs. Protected Waters. The outer coast
of Washington faces the full force of Pacific winter storms,
which affect not only the shoreline but, at their more extreme,
well into both subtidal and supratidal realms. There is a
substantial shift in seabird abundance from offshore and outer-
coastal waters during summer to protected waters during
winter. This may be a response to different levels of seasonal
productivity or, simply, to the need for protected waters
during the season of increased storms.

JA-170

c) Currents. Tidal currents are strongest at the mouths
of harbors and anywhere incoming or outgoing tidal waters
are constricted by land. These same currents bring nutrients
to the surface, increasing productivity and supporting
concentrations of prey. San Juan Channel and Admiralty Inlet
are such places, where thousands of birds gather in season to
feed on the fishes that swarm there. Many of the birds float
downcurrent, then fly back upcurrent and repeat the foraging
run. Red-necked and Horned grebes fly readily and are part
of this spectacle, while Western Grebes, poorer fliers, spend
their time in quiet bays with little current.

d) Bottom Types. Bottom type is significant in
determining the diversity, abundance, and species
representation of the invertebrates that are preyed upon by
fishes-seabird food-and the birds themselves. Bottom types,
both subtidal and intertidal, vary from solid rock to cobble to
sand to mud, and in each type, there is a different suite of
prey species. For example, rock bottoms support attached
mussels, primary food for Suf and Black scoters, while sand
bottoms support burrowing clams, primary food for White-
winged Scoters.

e) Shorelines. As with the bottom the shoreline may be
composed of rock, cobble, sand, or mud, or mixtures of these
elements; each type has its own shorebird species. Depending
on the intertidal topography, low tides may expose narrow
rock ledges or thousands of acres of rich mudflats. In
addition, the influence of freshwater and terrestrial habitats is
felt everywhere the land meets the sea. Terrestrial
environments are obviously of great importance to seabirds as
nest sites.

f) Summary. The marine waters of Washington are
richly productive of life, the most conspicuous sign of which
are its abundant and diverse seabirds. The 125 species of

JA-171

birds that occur in these waters, totaling hundreds of
thousands to millions of individuals, are spread throughout a
great diversity of marine habitats. Many species breed on our
coast, and many waters provide especially significant breeding
or wintering grounds. All of these birds, particularly those
that dive beneath the surface to forage and those that nest
colonially or otherwise occur in large concentrations, are
highly vulnerable to oil spills.

g) References.

Brueggeman, J.J., Ebasco Environmental, and Ecological
Consulting, Inc. 1992. Oregon and Washington Marine
Mammal and Seabird Surveys. OCS Study, MMS 91-
0093, U.S. Minerals Management Service.

Manuwal, D.A., T.R. Wahl, and S.M. Speich. 1979. The
seasonal distribution and abundance of marine bird
populations in the Strait of Juan de Fuca and northern
Puget Sound in 1978. NOAA Technical Memorandum.
ERL MESA-44, 391 pp.

Paulson, D.R. 1992. Northwest bird diversity: from

extravagamt past and changing present to precarious
future. Northwest Env. J. 8:71-118.

Speich, S.M., and T.R. Wahl. 1989. Catalog of Washingtor
Seabird Colonies. U.S. Fish & Wildlife Service, Biology
Report 88, 511 pp.

Wahl, T.R. 1984. Distribution and abundance of seabirds
over the continental shelf off Washington. Privately
published, 44 pp.

Wahl, T.R., S. M. Speich, D.A. Manuwal, K.V. Hirsch, and
C. Miller. 1981. Marine bird populations of the Strait of Juan
de Fuca, Strait of Georgia, and adjacent waters in 1978 and
1979. DOC/EPA Interagency Energy/Environment R&D

JA-172

Prog., Rep. EPA/600/F-81-156, U.S. Environmental
Protection Agency, 789 pp.

/s/ Dennis Paulson
DENNIS PAULSON

Signed or attested before me, Beverly J. Jolley, by Dennis
Paulson.

DATED this 30th day of May, 1996.

/s/ Beverly J. Jolley
NOTARY PUBLIC, in and for the
State of Washington.
My commission expires: 12/21/97

JA-173

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

HONORABLE JOHN C. COUGHENOUR

CAUSE NO. C95-1096

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,

V.

MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,

Defendants,
and

THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
and OCEAN ADVOCATES, INC..,

Intervenors.

AFFIDAVIT OF MORRIS W. BARKER

STATE OF WASHINGTON )
) ss.
COUNTY OF THURSTON )

JA-174

I, Morris W. Barker, being first duly sworn on oath,
depose and state as follows:

1. My educational background includes Bachelor and
Master of Science degrees from Oregon State University and
a Doctorate of Philosophy from the University of Washington,
all of which are in the field of fisheries science.

2. Iam by training a fishery scientist and biologist and
have been employed by the Washington Department of Fish
and Wildlife since 1978. Presently, I am the Division
Manager for Marine Resources and have worked in this area
for close to three years. I am responsible for management of
all marine shellfish and non-anadromous finfish in state
waters, both Puget Sound and offshore. These duties also
include a participatory role in multi-jurisdictional management
within the 200-mile exclusive economic zone of the United
States. This position requires familiarity with the population
status and dynamics of the stocks, the fisneries and
communities that are dependent on those stocks as well as an
overview of the stock ecosystem role and their
interrelationship in the context of allowable harvest and
concomitant effects. Prior to this management position, I
worked as a fisheries biologist in salmon management. I have
managed all five Pacific salmon species of the northwest
salmon stocks, both from coastal and Puget Sound natal
streams. These duties involved development and
understanding of the freshwater and marine life history
-including the migratory patterns in Puget Sound and the
ocean-harvest management, and negotiations with foreign and
domestic governments.

3. Productivity and Diversity of Puget Sound Marine
Resources. The productivity and diversity of Puget Sound
marine waters is quite extensive and supports a very complex
and integrated ecosystem. The interdependencies of the

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JA-175

marine and terrestrial life that are obligatory to this system are
both robust and fragile: robust in that there are vital and
healthy populations, and fragile from the perspective of the
linkages between species and/or their habitat. Examples in
this latter category include the relationship of bald eagles and
marine mammals with the fish upon which they prey; the
dependency of forage fish such as herring or surf smelt on
critical spawning habitat in the intertidal zone and on marine
vegetation; the protective habitat and food provided by marine
vegetation to many invertebrate species, juvenile rockfish and
other small fish species; and the dependency of many
protected sea bird species (including the endangered marbled
murrelet) on the health and productivity of forage fish
populations such as herring and sand lance. Damage or
destruction of any of these links has consequences that extend
significantly beyond the immediate visible effects and ripple
through the food chain with negative impacts to the whole
ecosystem.

There are many hundreds of species of animals and plants
that contribute to this functioning resource base and for the
most part their individual species roles are esoteric or
unknown. However, for those many species of recreational,
commercial and cultural interest in Puget Sound the
relationships between species and their effect on society are
better understood. These organisms include five species of
salmon (chinook, coho, pink, chum and sockeye) and three
species of anadromous salmonids (steelhead, dolly varden and
cutthroat); over 30 species of rockfish, dogfish shark, many
species of flatfish (English sole, starry flounder, rock sole,
sand dabs, etc) and other marine groundfish including
pollock, Pacific cod and whiting; two species of crab; two
species of urchins; abalone; at lest four species of shrimp; and
over a dozen species of bivalves (oysters, clams and scallops)

JA-176

including the geoduck which supports valuable Tribal and
commercial fisheries (Attachment: 1996 Geoduck Atlas).

4. Salmon Resource. For each of the five salmon
species there are three critical habitat components; freshwater,
estuarine and marine. All salmon spawn in freshwater and
migrate to the sea anywhere from a week to more than a year
after hatching, depending on the species. All of the species
pass through estuarine areas on the way to the sea. The
estuary is a very productive environment and supplies a
critical early rearing and feeding ground for many of these
species. This is also a period of great physiological stress as
the young salmon (smolt) transitions from a freshwater to a
saltwater environment. This transition is marked by complex
internal changes to adapt to the new medium. Many studies
have demonstrated that extra stress at this time can disrupt the
smoltification process and create significant mortalities among
the outbound juveniles. Pollution is one of the major factors
that disrupt the smoltification process. Between March and
June millions of juvenile salmon leave the rivers where they
were born and migrate along the shorelines of Puget Sound
feeding on pelagic invertebrate and vertebrate fauna (adults
such as copepods; and larval forms of such species as crab
and fish) as they make their way to the ocean feeding
grounds. After 1-7 years, again depending on the species ,
they return as adults to the Puget Sound on their way back to
their natal stream. Some stocks of chinook and coho salmon,
and pink salmon to a lesser extent, find the waters of Puget
Sound to be productive enough to support their adult rearing
needs. Consequently they reside in Puget Sound year around
and provide for a constant source of recreational fishing
opportunity. From April through December, hundreds of
thousands of salmon move through the waters of Puget Sound
where sport, commercial and tribal fishers harvest them.

“pet SRE BERT

JA-177

5. Marine Fish and Baitfish. Finfish resources utilize
habitats that include estuarine and nearshore environments.
Many species of rockiish, flatfish, lingcod and forage fish use
these shallower water environments in their early life history
as nursery grounds after they settle out of their planktonic
larval stage of development. Both the shallow water
environment, including intertidal, and the surface waters
where many of the larval forms can be found are very
susceptible to lethal impacts from pollution such as petroleum
and its refined products. Not only do these species become
impacted but their prey items are also impacted (includes not
only pelagic fauna but also phytoplankton). Although many of
the finfish will move to deeper water to live their adult life
there are many species who spend their adult life in shallow
water or are obligatory temporary inhabitants because they
spawn in the shallow and/or intertidal areas. Such species
(including surf smelt, rock sole, and herring) are important
recreational and commercial species as well as important prey
items to the other animals in the ecosystem. Direct oiling can
smother eggs in and on the substrate, chemically poison the
progeny, amd cause adult spawner avoidance and/or
mortalities from the chemical contaminants.

6. Shellfish. All shellfish in Puget Sound are at risk
from pollution, particularly petroleum and its refined
products. Shellfish (invertebrates) in their many forms spend
all or a part of their life cycle as plankton in the water
column. The presence of polluting materials in and on the
water create a large number of mortalities among these fragile
organisms and their prey items (see Para. 5). Those species
who only spend a portion of their life cycle in the water
column could also be subjected to environmental impacts as
juveniles and adults. Many important commercial and
recreational species fall into this category (oysters, clams,
mussels, urchins and abalone) which all could be affected by

JA-178

direct oiling in the intertidal areas as well as other levels of
exposure through sinking sediments and chemical
contaminants.

7. Social-Economic Fisheries Issues. In terms of socio-
economic issues, this system in turn supports many year
around and seasonal commercial and recreational fisheries
(see attachments re: recreational and commercial catch
statistics: 1993 Fisheries Statistical Report and Washington
State Sport Catch Report For Foodfish 1993) as well as the
culture and traditional lifestyle of the Washington Treaty
Indian Tribes through their fishing activities. For example, in
1993, Washington commercial fish and shellfish harvesters
delivered over 189 million pounds of seafood worth $159
million at the ex-vessel level and $354 million dollars at the
wholesale level, including the harvest of 6,525,000 salmon
with a retail value of $74,128,000. Also, in 1993, 1,010,030
sport anglers caught an estimated 475,632 salmon in marine
waters. And 1,252,177 pounds of clams and 78,753 pounds
of oysters were harvested from Puget Sound areas east of
Dungeness spit.

The value of a healthy, stable and diverse ecosystem
provides extensive year around economic return to the state
and its communities as well as strong cultural linkages to the
many diverse ethnic groups. These economic values come
from direct sales, secondary enhanced products, infrastructure
support (marine equipment, fishing gear, fuel, marinas, boat
yards) jobs, taxes, etc. Many indirect values are also evident
through family recreational experiences, maintenance of
traditional fishing community and individual lifestyles. The
clean waters of Puget Sound, salmon fishing and other
seafood resources have long been synonymous with the
Pacific Northwest and this has provided the incentive for

JA-179

many people to move both businesses and families to this
area.

/s/ Morris W. Barker
MORRIS W. BARKER

Signed or attested before me, Beverly J. Jolley, by Morris
W. Barker.

DATED this 31st day of May, 1996.

/s/ Beverly J. Jolley
NOTARY PUBLIC, in and for the
State of Washington.
My commission expires: 12/21/97

JA-180

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

HONORABLE JOHN C. COUGHENOUR

CAUSE NO. C95-1096

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,
Vv.

MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,

Defendants,
and

THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
and OCEAN ADVOCATES, INC.,

Intervenors.

AFFIDAVIT OF SUSAN ZEMEK

STATE OF WASHINGTON )
) ss.

County of Thurston )

mages Hae

JA-181

I, Susan Zemek, being first duly sworn on oath, depose
and say:

1. That I am a citizen of the United States, over the age
of 18 years, and competent to be a witnesses in the above-
entitled cause.

2. I am the Public Affairs Administrator for the
Washington State Parks and Recreation Commission.

3. My responsibilities as Public Affairs Administrator
include providing statistics on the extent and nature of public
usage of Parks and Recreation Commission facilities.

4. Attached hereto as Exhibit | is a true and accurate
list of Parks and Recreation Commission sites located on or
adjacent to Puget Sound, and an indication of the estimated
annual visitation for each such site, as well as a list of
recreational activities which are customarily undertaken at
each site.

5. These statistics indicate that the total annual
estimated visitation for Parks and Recreation Commission
sites on or adjacent to Puget Sound is 55,917,511.

/s/ Susan Zemek

SUBSCRIBED and SWORN to before me this 31 day of
May, 1996, by Susan Zemek.

/s/ Judy K. Larson
JUDY K. LARSON

NOTARY PUBLIC in and for the State
of Washington.
My appointment expires: 12-25-96

JA-182

EXHIBIT 1
WASHINGTON STATE PARKS

Here is a list of Washington State Parks, followed by their
1995 attendance, and a list of activities commonly done at the
park. Total park visitation for 1995 is 55,917,511.

Anderson Lake: 220,558
Fishing and hiking.
Bay View: 1,424,298
Camping, picnicking, swimming and sailboarding.

Beacon Rock: 1,678,729
Picnicking, camping, hiking, playground activities,
fishing, boating, rock climbing, horseback riding,
historical site, and mountain biking.

Belfair: 2,573,066
Camping, picnicking, beachcombing, crabbing, and kite
flying.

Birch Bay: 6,442,672
Camping, scuba diving, picnicking, hiking, clamming,
bird watching, water skiing, crabbing, beachcombing,
kite flying, windsurfing, and photography.

Blake Island: 1,060,555
Picnicking, camping by boat, boating, water skiing,
fishing, hiking, beachcombing, scuba diving, bird
watching, and marine life study.

Blind Island: 23,646
Camping, picnicking, scuba diving, and bird watching.

Camano Island: 1,968,035
Camping, picnicking, hiking, boating, clamming, nature
study, scuba diving, rock collecting, and bird viewing.

Wits Lore

JA-183

Clark Island: 33,879
Camping, picnicking, fishing, hiking, scuba diving, and
clam digging.

Cone Island: Undeveloped.

Crow Butte: 946,572
Boating, camping, fishing, hiking, picnicking,
sightseeing, swimming, water skiing, windsurfing, and
bird watching.

Cutts Island: Undeveloped.

Dalles Mountain Ranch: Undeveloped.
Hiking.
Danger Island: Undeveloped.

Dash Point: 2,021,920
Camping, picnicking, hiking, fishing, beachcombing, and
marine life study.
Deception Pass: 19,658,351
Camping, boating, hiking, fishing, swimming,
beachcombing, historical site, and Environmental
Learning Center.
Doe Island: 16,632
Camping, picnicking, fishing, scuba diving, and hiking.
Dosewallips: 985,973
Camping, picnicking, hiking, fishing, oyster harvesting,
clamming, shrimping, and wildlife viewing.
Doug’s Beach: 298,558
Windsurfing and fishing.

JA-184

Eagle Island: Undeveloped.
Clamming and fishing.

Ebey’s Landing: 210,847
Trail to historic cemetery, beachcombing, hiking, and
surf fishing.

Everett Jetty: Undeveloped.

Fay Bainbridge: 1,058,016
Camping, picnicking, beachcombing, fishing, clamming,
crabbing, scuba diving, and boating.

Fort Canby: 3,131,338
Lava site, artillery site, camping, picnicking,
beachcombing, fishing, heritage site, hiking, clamming,
and boating.

Fort Casey: 2,814,084
Camping, picnicking, hiking, fishing, driftwood
collecting, interpretive center, boating, and historical
Site.

Fort Columbia: 761,189
Natural historic site, historical fort, interpretive center,
Fort Ebey: 1,673,992
Camping, hiking, picnicking, interpretation, and
beachcombing.

Fort Flagler: 1,784,488
Camping, picnicking, boating, beachcombing, hiking,
scuba diving, fishing, clamming, crabbing, and historical
site.

Fort Ward: 319,582
Picnicking, beachcombing, hiking, clamming, crabbing,
boating, fishing, and scuba diving.

JA-185

Fort Worden: 5,686,312
Camping, conferences, fishing, scuba diving, youth
hostel, hiking, cultural arts, picnicking, boating, biking,
historical site, and museum.

Freeman Island: Undeveloped.

Hoodsport Trail: 81,061
RE ie SO
Hope Island North: Undeveloped.
Picnickine. beac! bing, cl yen
Hope Island South: Undeveloped.
Horsethief Lake: 540,352
Indian pictographs, boating, rock climbing, windsurfing,
Iceberg Island: Undeveloped.
Illahee: 1,5847,742
Camping, boating, picnicking, water skiing, oyster
harvesting, clamming, and hiking.
James Island: 105,907
Camping, picnicking, hiking, fishing, and scuba diving.
Jarrell Cove: 240,640
Picnicking, hiking, camping, clamming, fishing, and
boating.
Joemma Beach:
Beachcombing, camping, boating, clamming, crabbing,
fishing, camping, and picnicking.
Jones Island: 188,955

Camping, picnicking, fishing, clamming, and scuba
diving.

JA-186

Joseph Whidbey: 416,655
Picnicking, hiking, beachcombing, and camping.
Keystone Spit:
Beachcombing, picnicking, bird watching, fishing, kite
flying, sail boarding, and interpretation.
Kitsap Memorial: 1,238,307
Picnicking, camping, hiking, volleyball, and baseball.

Kopachuck: 618,536
Hiking, camping, boating, picnicking, water skiing
beachcombing, fishing, scuba diving, and bird viewing.
Lake Cushman: 924,912
Picnicking, boating, water skiing, hiking, camping, and
fishing.
Larrabee: 2,521,613

Picnicking, boating, fishing, clamming, camping, water
skiing, crabbing, hiking, beachcombing, and scuba

diving.
Lilliwaup Tidelands:

Beachcombing, clamming, and shellfish digging.
Lime Kiln Point: 582,824

Whale watching, picnicking, and hiking.
Lopez Island Tidelands: Undeveloped.

Manchester: 575,274
Scuba diving, fishing, picnicking, camping,
interpretation, and hiking.

Maryhill: 2,425,058
Boating, camping, fishing, hiking, picnicking,
swimming, water skiing, and wind surfing.

JA-187

Matia Island: 47,726
Camping, picnicking, fishing, scuba diving, hiking, and
clamming.
McMicken Island: 18,250
Hiking, clamming, and fishing.
Moran: 3,066,055
Hiking, camping, swimming, Environmental Learning
Center, boating, fishing, biking, and historical siie.
Mukilteo: 5,950,920
Beachcombing, bird watching, kite flying, boating, and
historical site.
Mystery Bay: 364,795
Picnicking, boating, clamming, and crabbing.
Old Fort Townsend: 755,410
Camping, picnicking, hiking, fishing, clamming,
crabbing, bald eagle viewing, and historical site.
Old Man House: 2,707
Picnicking and clamming.
Olga:
Boating.
Patos Island: 32,151
Camping, picnicking, fishing, hiking, and clamming.
Peace Arch: 1,660,331
Horticultural displays, interpretation, picnicking,
gardens, and miscellaneous city sponsored recreational
Penrose Point: 671,806
fishing.

JA-188

Posey Island: 10,875

Boating.
Potlatch: 1,198,847

Picnicking, camping, fishing, scuba diving, and boating.
Rock Island: Undeveloped.

Rothschild House: 76,149
Restored historical house, interpretation.

Saddlebag Island: 21,224
Camping, picnicking, fishing, hiking, and crabbing.
Saltwater: 2,954,392
Picnicking, camping, scuba diving, hiking, and
clamming.
Scenic Beach: 907,093
Picnicking, camping, hiking, boating, fishing, harvesting
oysters, and interpretation.
Sequim Bay: 2,126,725
Picnicking, camping, fishing, clamming, scuba diving,
beach walking, field and group sports, tennis, boating,
beachcombing, hiking, and bird viewing.
Shine Tidelands: 107,516
Beachcombing, hiking, scuba diving, and windsurfing.
Skagit Island: Undeveloped.

Skull Island: Undeveloped.

JA-189

South Whidbey: 1,089,340
Picnicking, hiking, scuba diving, rock collecting,
clamming, bird watching, crabbing, camping, driftwood
collecting, fishing, and beachcombing.
Spencer Spit: 1,081,431
Camping, picnicking, beachcombing, bird viewing,
Square Lake:
Swinknins, hiking. ie aid Chibi.
Stretch Point: 16,273
Picnicking, beachcombing, boating, clamming and
fishing.
Stuart Island: 195,301
Camping, picnicking, hiking, fishing, clamming, and

Sucia Island: 528,430
Camping, picnicking, hiking, boating, clamming, and
crabbing.

Toandoes Peninsula Tidelands: Undeveloped.

Tolmie: 2,412,137
Picnicking, beach walking, clamming, fishing, and scuba
diving.

Triton Cove: 75,969

Turn Island: 27,353

Camping, picnicking, fishing, clamming, and scuba
diving.

JA-190

Twanoh: 1,843,593

Boating, picnicking, swimming, oyster harvesting, water

skiing, fishing, camping, and hiking.
Useless Bay: Undeveloped tidelands.
Victim Island: Undeveloped.
Wenberg: 1,999,528

Camping, picnicking, play area, swimming, boating,

water skiing, fishing, hiking, and windsurfing/sailing.
West Hylebos: 173,328

Bird watching and hiking.
Wolfe Property: 89,304

Beachcombing, hiking, camping, scuba diving,

windsurfing, clamming, and crabbing.

JA-191

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

HONORABLE JOHN C. COUGHENOUR

CAUSE NO. C95-1096

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff.
Vv.

MIKE Lowry, Governor of the State of Washington;
CHRISTINE O. GREGOIRE, Attorney General of the
State of Washington; BARBARA J. HERMAN, Administrator
of the State of Washington Office of Marine Safety;
DAVID MCEACHRAN, Prosecutor of Whatcom County;
DAVID NEEDY, Prosecutor of Skagit County;
JAMES KRIDER, Prosecutor of Snohomish County; and
NORMAN MALENG, Prosecutor of King County,

Defendants,
and

THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL;
and OCEAN ADVOCATES, INC.,

Intervenors.

AFFIDAVIT OF RICHARD KOCAN

STATE OF WASHINGTON )

) ss.

COUNTY OF KING )

JA-192

I, RICHARD KOCAN, being first duly sworn, upon
oath, deposes and says:

1. Iam over 18 years of age and competent to testify
herein. I have attached a copy of my resume.

2. Since 1989 when the Exxon Valdez spilled 11 million
gallons of Prudhoe Bay crude oil in Prince William Sound
(Alaska), environmental scientists have significantly expanded
our knowledge of the effects of petroleum on the biota of a
fjord-like marine ecosystems. During the 7 years following
the spill, natural resource damage assessment (NRDA) studies
have examined every aspect of the Prince William Sound
ecosystem. Because Puget Sound is similar to Prince William
Sound in many ways, it is possible to predict the effects of an
oil spill on the marine resources of Puget Sound using data
collected in Prince William Sound since 1989.

3. The effects of spilled petroleum on Puget Sound will
be influenced by factors such as:

1. Amount of oil spilled;

2. Where vil is spilled (bay vs open water; high
energy beach vs quiet bay);

3. Type of oil (eg. geographic origin; crude or
refined);

Water exchange (currents and tidal effects);
Season (spawning; migration);
Weather (wind; rain);

Response time and experience of clean-up
crews;

4 aw

8. Coordination of clean-up among various
responsible agencies.

JA-193

4. Puget Sound is a marine fjord consisting of heavily
industrialized embayments and open, relatively pristine areas.
Overall, water exchange within the Sound is limited, with
some areas judged to be more sensitive than others to
anthropogenic inputs because of their depth and/or low water
exchange. Some of these sensitive areas include but are not
limited to:

Hood Canal Dyes Inlet
Sinclair Inlet Holmes Harbor
Budd Inlet Dabob Bay
Sequim Bay Liberty Bay
Carr Inlet Port Susan
Quartermaster Harbor Penn Cove
Case Inlet Port Orchard

Because these areas are relatively confined and shallow, they
would be more adversely affected by an oil spill than would
open areas. The sediments in shallow intertidal and subtidal
areas would become heavily contaminated and affect survival
and reproduction of organisms such as clams, oyster, mussels,
crabs and intertidal fishes.

5. Although crude oil is sparingly soluble in seawater
( 900
dead bald eagles following the Exxon Valdez oil spill. The
greatest damage occurred immediately after the spill, was
short term and resulted from direct contact with oil or oil-

d) Common murres: Both mortality and sublethal
effects were observed in Common murres. Between 175,000
and 300,000 murres were killed in 1989 and reproduction
among the survivors was still below normal in 1992. Annual

JA-197

counts of murres from 1989-1991 at colonies within the oil
trajectory were 40-60% lower than pre-spill counts while at
colonies just outside the trajectory there was no observed

e) Pigeon guillemots: Between 1,500 and 3,000
guillemots died (25-36%) in 1989 following the oil spill. By
1992 the population was approximately one half its pre-spill
size. The most heavily oiled areas suffered the largest
population declines in 1989; about twice as great in oiled
areas as in unoiled areas. Unhatched eggs were found coated
with oil as late as 1990, indicating that the birds were still
recovering by 1992.

Fish

f) Pacific herring: In 1989 Prince William Sound
larvae, and reduced hatching weight in oiled spawning areas
but not in unoiled areas. Larvae from oiled spawning areas
also exhibited a significant increase in genetic damage in the
form of chromosome breakage and abnormal cell division as
well as lower hatching weights. These findings were
confirmed in laboratory experiments where herring embryos
were exposed to known amounts of Prudhoe Bay crude oil.
Females that had been exposed to oil as juveniles produced
significantly fewer normal and live larvae when they returned
to spawn four years later.

Mi ; ee in 1989
revealed that fish captured from several oiled areas had severe
hepatic necrosis (liver cell death), while those collected from
unoiled sites were normal. Experimental exposure of herring
to environmentally realistic levels of oil resulted in identical
live damage in the exposed fish.

JA-198

In 1993 and 1994 over 90% of the Prince William Sound
spawning herring biomass disappeared as a result of VHS, a
viral disease that had not been known to occur in herring prior
to the oil spill. Mortality in herring associated with VHS virus
has not occurred in free ranging fish outside Prince William
Sound, except where petroleum has been spilled. Studies in
Puget Sound have shown that juvenile herring less than 6-
months-old are already infected with this potentially lethal
virus and that if wild herring are stressed, epizootics of VHS
occur.

g) Salmon: Increased egg mortality and physically
deformed fry were observed in pink salmon in oiled streams
between 1989 and 1992. It is suspected that the poor pink
salmon returns in 1992 and 1993 may be the result of earlier
increased egg mortality in oil streams. Egg and fry mortality
was found from the mouth of the spawning streams up to the
highest level reached by oil in 1989. Significantly less
mortality was observed in streams that escaped oiling in 1989.

Shellfish

h) Caged mussels deployed at various sites in and
around Prince William Sound were found to be contaminated
with whole Exxon Valdez oil, even when deployed at 25
meters. The highest levels of mussel contamination occurred
closest to the oil trajectory and at 1 meter depths near oiled
shoreline. These reached levels of 5.7 ug/g at 1 m and 3.17
ug/g at 5 m. Mussels deployed outside Prince William Sound
in 1989 and those deployed in the Sound in 1990 and 1991
contaminated mussels had whole Exxon Valdez Oil in their
tissues, indicating that particulate oil can sink to significant
depths following a spill.

JA-199

Coastal Habitat

i) Intertidal habitat: Population declines and sublethal
effects were observed in numerous intertidal plants and
animals. Lower and mid intertidal areas appear to be

ing ff ee Oe intertidal " which had
not fully recovered three years after the oil spill. Oil persists
in and under mussel beds five years after the oil spill.

j) Subtidal habitat: Subtidal plants and animals
suffered both population declines and sublethal effects.
Eelgrass and some species of macroalgae were recovering
three years after the spill.

Economic Resources

k) Commercial fishing: Emergency commercial fishing
closures were instituted in 1989 throughout the spill area and
sablefish. Herring were opened from 1990 through 1993 when
there was a 90,000 ton decline in biomass which once again
triggered a fishing closure that continues into 1996.

1) Tourism: Forty-three percent of the commercial
tourism business in the Prince William Sound area reported a
decline in business due to the oil spill. This was reduced to 12
percent by 1990.

/s/ Richard M. Kocan
RICHARD KOCAN

Signed or attested before me, Richard Kocan, by

DATED this 3rd day of June, 1996.

/s/ Linda M. Marsh
NOTARY PUBLIC, in and for the
State of Washington.
My commission expires: 10/28/97

JA-200

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

HONORABLE JOHN C. COUGHENOUR

NO. C95-1096c

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,

VS.

MIKE Lowry, Governor of the State of Washington, et al.,
Defendants.

AFFIDAVIT OF RONALD F. TEISSERE

STATE OF WASHINGTON )
) ss.

County of Thurston )

I, RONALD F. TEISSERE, being first duly sworn upon
oath, deposes and says:

1. I am an Assistant Division Manager for the
Washington Department of Natural Resources, Division of
Aquatic Resources. I have been in this position since 1989.
My duties include supervision of the state’s geoduck clam
sales program, the maintenance of the ownership and
encumbrance records of state-owned aquatic lands, the land
use planning functions of the Division, and the collection of
data on the near-shore physical and biological habitats of
Puget Sound.

2. I have reviewed the July 1, 1995, table of lands
managed by the Department of Natural Resources, especially

JA-201

with regard to state-owned aquatic lands, that is attached to
my affidavit as Exhibit 1. The Department of Natural
Resources manages these state-owned aquatic lands as a
steward under the Public Trust Doctrine. This responsibility
came to the state as a result of its acquisition of these
sovereign lands from the United States at statehood. RCW
79.90.455 articulates the implementation of this responsibility
with regard to the management and development of state-
owned aquatic lands by the Department.

3. As shown on Exhibit 1, the revenue from leases,
easements, sales of valuable materials, and other uses of state-
owned aquatic lands is distributed to three different accounts
based on either the nature of the activity as in the case of
dredge disposal, or the type of lands involved. The three
accounts are the Aquatic Lands Dredge Disposal Account, the
Aquatic Lands Enhancement Account, and the Resource
Management Cost Account. The direct revenue generated
from state-owned aquatic lands for Fiscal Year 1995 was
$9,983 858.

4. Most leases of state-owned aquatic land are for uses
such as boat moorage and marine terminals that, by their
nature, require a waterfront location. The Legislature has
directed that the rentals for these uses be set below fair'market
value to encourage economic development around Puget
Sound and other waters of the state. This strategy has been
demonstrably successful, as shown by the economic value
associated with the development of the waterfront areas.
Estimates of this value are many times the direct revenues.

5. Another aspect of the development of the Puget
Sound waterfront has been the increase in the value of real

property adjacent to the waterfront. In some areas of the
Sound, assessed valuations of residential waterfront property
exceeds two million dollars per acre. The property taxes

JA-202

generated by these high property values flows directly to local
governments. The waterfront property value, after applying
a legislatively-established discount, is the principle
determinant of rentals for leases of state-owned aquatic lands.

6. Exhibit 1 does not address the major economic values
of state-owned aquatic lands. These other values include the
dollar values associated with the biological and physical
habitats that support several commercial fisheries, a large
recreational fin fish and shellfish component, and the
commercial value of the shellfish harvesting done by Native
Americans under various treaties. Puget Sound has become a
destination resort location for water-related activities because
of the availability and health of these resources. The valuation
of these types of resources for recreational use has generally
been done using contingent valuation methods.

7. In summary, no attempt has been made to
comprehensively value the state-owned aquatic lands within
Puget Sound. The annual direct revenue represents a fraction
of the overall economic contribution to the state from a
fraction of the total area of the Sound. Puget Sound and the
Straits of Juan de Fuca contain approximately one million
acres. Less than 50,000 acres of this area is under lease from
the state of Washington.

/s/ Ronald F. Teissere

SIGNED AND SWORN To before me this 31st day of
May, 1996, by Ronald F. Teissere.

/s/ A.W. Grimes

Notary Public in and for the

State of Washington,

Name: Audrey Wagner-Grimes _
Commission Expires: 9-15-98

JA-203

The United States District Court
Western District of Washington State

Honorable John C. Coughnour

Case No. C95-1096C

THE INTERNATIONAL ASSOCIATION OF
INDEPENDENT TANKER OWNERS (INTERTANKO),
Plaintiff,

Vv.
MIKE Lowry, Governor of the State of Washington; et al.,
Defendants.

THE WASHINGTON ENVIRONMENTAL COUNCIL;
THE NATURAL RESOURCES DEFENSE COUNCIL, Inc.;
and JCEAN ADVOCATES, Inc.,

Intervenors.

AFFIDAVIT OF ARTHUR McKENZIE
IN SUPPORT OF INTERVENORS’
MOTION FOR SUMMARY JUDGMENT

STATE OF WASHINGTON )
) ss:
COUNTY OF NEW YORK )

Arthur McKenzie, being sworn, states:

1. I am the Director of the Tanker Advisory Center,
Inc., and submit this affidavit in support of the Motion for
Summary Judgment of Intervenors Washington Environmental
Council, Natural Resources Defense Council and Ocean
Advocates.

JA-204

Qualifications

2. I have had over 60 years experience in the tanker
industry. I spent 11 years at sea serving on Exxon
Corporation tankers, first as a seaman and later attaining the
rank of Chief Mate and obtaining my Master’s license.

3. Subsequent to serving on tankers at sea, I worked for
Exxon for 29 years ashore, directly and indirectly involved in
the operation of oil tankers. During my last eight years with
Exxon, I served as Senior Marine Advisor. While at Exxon
and thereafter for the last 25 years, I have taught a 30-hour
course entitled "Petroleum Tankship Operations" which over
5,000 people have completed.

4. Il also founded the Tanker Advisory Center, Inc. in
order to provide information on tankers and tanker operations
to persons wishing to charter a tanker, understand their
operational capabilities, or analyze oil transportation
alternatives. Each year for the last 14 years, the Center has
published an annual Guide for the Selection of Tankers, a
reference book which reports on and evaluates over 3,300
tankers.

5. I also serve or have served on numerous tanker
operation related boards including:

¢ The Council of Trustees of the United States
Seaman’s Service;

* The United States Coast Guard’s Advisory
Committee on Rules of the Road;

* The National Materials Advisory Board of the
National Research Council, which Board
prepared the report Materials Aspects of Inert
Gas Systems for Cargo Tank Atmosphere
Control; and

JA-205

¢ The Committee on Control and Recovery of
Hydrocarbon Vapors from Ships and Barges of
the Marine Board of the National Research
Council, which Committee prepared the report
Controlling Hydrocarbon Emissions from Tank
Vessel Loading.

6. Asa result of these activities and this experience, I
am extremely familiar with tanker operations and navigational
needs. With reference to this litigation, I have examined:

The State of Washington’s Best Available
Protection (BAP) Rules, codified at WAC 317-
21, "Tank Vessel Oil Spill Prevention Plans;"

¢ The Model Oil Spill Prevention Plan for

Tankers, prepared by the Washington State
Office of Marine Safety, dated April 1995;

¢ The complaint of plaintiff Intertanko; and

Other materials relating to federal and
international requirements governing tanker
operations.

The Washington State Best Available Protection Rules

7. Ihave examined the Washington State Best Available
Protection (BAP) Rules. On the basis of my experience and
training, as described in more detail below, I believe that: (1)
these BAP rules do not conflict with any existing federal or
international standards; (2) the BAP Rules will be effective in
preventing oil spills and protecting the Puget Sound
environment; and (3) the BAP Rules do not impose an
unreasonable burden on tanker operations or tanker owners.

JA-206

The Rules Do Not Conflict with Existing Law.

8. The BAP Rules impose additional - not different or
inconsistent - requirements on tankers when operating in
Washington State waters. While the Rules do in some ways
impose requirements on tanker operators that they must
follow when operating in Washington State waters that they
need not follow elsewhere, a tanker following these additional
requirements will not be in violation of any existing federal or
international standards. The BAP Rules are thus not
inconsistent with existing law.

9. Several of the Rules simply define general phrases
used in other regulations. In my experience, a general
qualification such as "appropriate" needs site-specific
definition and the BAP Rules provide an important measure
of protection in so doing. For example, while federal and
international standards require security rounds as
“appropriate,” the BAP Rules define this as every 2 hours (or
every 4 hours if the ship has certain equipment). WAC 317-
21-200(4)(d). Similarly, federal law requires anchor watches
at "sufficiently frequent intervals;" the BAP Rules defines
these as once per hour. WAC 317-21-200(5). See also WAC
317-21-205(1) and (2) (defining the international "sufficiently
frequently" standard for fixing location and the federal "all
pertinent information" requirement for voyage planning).
These site-specific definitions of general terms cannot be
viewed as conflicting with other requirements, but rather
simply as correctly interpreting general guidance for the given
area.

The Rules Are Likely to be Highly Effective in
Preventing Oil Pollution.

10. It is my opinion that the BAP Rules are also likely to

be very effective in reducing casualties in the Puget Sound

JA-207

area. For example, the requirements for three licensed deck
officers during periods of restricted visibility, pre-arrival
inspection and planning, and additional training are all likely
to help prevent the types of situations which can lead to
accidents.

11. The navigation watch section requires the watch to
consist of two licensed deck officers at all times and three
during periods of restricted visibility. WAC 317-21-200(1).
Given the fact that in Puget Sound there may often be
extended periods of restricted visibility and that there are
work hour limitations (imposed by federal law on U.S. flag
ships and extended by the BAP Rules to all tankers in
Washington waters, see WAC 317-21-245), this requirement
may necessitate an extra deck officer on board to relieve one
of the others during the Puget Sound passage. This
requirement should be quite effective. Tankers entering the
region generally have a fairly long period traversing these
inland waters bordered by these sensitive lands. For example,
from the entrance of the Strait of Juan de Fuca to several of
the oil terminals there is a distance of approximately 100
nautical miles. A tanker cruising at 12-14 knots (a nautical
mile per hour) and slowing upon approach to the terminal
could easily take 12-14 hours to make this transit. This
voyage, especially during periods of low visibility, will
require the careful and constant attention of deck officers. The
mandate for a third officer during periods of restricted
visibility to oversee general operations and to be available to
relieve one of the other two, who are charged with monitoring
the navigation and collision avoidance systems, is likely to
significantly decrease human-caused error during these
longer, stressful transits. Moreover, this third officer
requirement, while it may be new for many independent
tankers, is already standard practice on many oil company
ships. It is absolutely the "best available technology."

JA-208

12. Similarly, the pre-arrival planning and inspection
requirements, WAC 317-21-205(2), -215, reasonably provide
the Washington State and federal port authorities the ability to
better judge the capabilities of entering ships. This
information provides the authorities with additional
information which would be very useful in determining
whether, for example, a ship should be denied entrance,
should be prohibited from entering beyond Port Angeles,
requires special escort or operational limitations, or mandates
other conditions. This will, in turn, help prevent unforeseen
or accidental casualties causing oil pollution. The pre-arrival
inspection requirements likewise protect against what, in my
experience, can be frequent causes of problems - an
undiscovered, but pre-existing, mechanical failure.

13. Likewise, for example, the additional training
requirements, WAC 317-21-230, should better prepare the
crew for emergencies. It is important to recognize that many
independently owned tankers may be owned by a company in
one country, for example Sweden; have officers from another
country, for example India; and a crew from a third country,
for example the Philippines. The crew and officers may not
have much experience working together beyond the voyage
they are on. In addition, the pilot is likely to be from the port
country, in this case the United States. Thus, there is a great
need for explicit training exercises to ensure that all personnel
are aware of the ship and its operations and can communicate
effectively in time of need.

The BAP Rules Are Not Unduly Burdensome.

14. The BAP Rules, while environmentally protective,
are in fact not unduly burdensome. As noted above, several
requirements are no different than standard operating practice
on ships operated by the oil companies. Most other
requirements are very similar to those being imposed in the

JA-209

relatively near future by the international community; the
BAP Rules simply advance the implementation date. Finally.
many of the requirements, such as additional training or
inspection or pre-arrival planning, are really quiet modest
and, from the point of view of day-to-day tanker operations,
impose a very slight additional burden.

The BAP Rules Are Necessary Due to Lack of Registry State
and Industry Enforcement.

15. Washington State in some ways is the forefront of oil
spill prevention. But more fundamentally, the Washington
BAP Rules merely reflect an unfortunate reality of the tanker
industry: that states of registry (flag states) and the tanker
industry itself have failed to eliminate and remove from
service the substandard and unsafe ships. For example, over
a decade ago, the 14 European nations agreed in the "Paris
Memorandum of Understanding" that the port states would
inspect 25% of all ships. This agreement reflected consensus
on the fact that the flag states and the industry themselves had
failed to impose sufficient requirements on tankers, thus
requiring the port states to impose additional restrictions.
Recently, other countries have joined into the Paris
Agreement, including Canada, the United Kingdom, Australia
and South Africa. Japan and the United States are considering
joining. All this reflects ype same reality faced by Washington
State: that the port states need to protect their resources
themselves and that they cannot rely on flag states or the
industry.

16. The Puget Sound area is considered to be an
. iti logical § . indeed, Washi
State provides a list of particularly sensitive environmental
areas but notes that for “all practical purposes, all Washington
waters should be considered environmentally sensitive." See
Model Oil Spill Prevention Plan, p. 1-12. Moreover, the

JA-210

Puget Sound environment can boast of great public support
and interest. On the basis of my experience with tankers in all
parts of the world, I believe it consistent with international
norms for a specific area or jurisdiction to assess the
importance of its waters and to impo‘ ‘The data cited in this report, while based on actual figures
obtained from industry sources, should be considered as purely indicative
and reflect a given situation at a given time.

JA-234

VESSEL OPERATING COST "LEVELS" AND

FINANCIAL ADVANTAGES

(period of reference: end 1994)
(20 year old bulk carrier; (1990 built product tanker;
30 000 dwt) 40 000 dwt)
USS/Day USS/Day
7 500 Ceiling (1) 9 500
4 500 Good Practice (2) 4 850
3 750 Common Practice (3) 4 250
3 250 Standard (4) 3 750

2 750 3 100

(1) Ceiling = level of maximum expenditure (influenced by
financial revenue earning potential of the vessel in the
freight market and financial costs of owner).

(2) Good Practice = high level of expenditure adopted by
minority of shipowners.

(3) Common Practice = average level of expenditure
adopted by majority of shipowners.

(4) Standard Practice = minimum level of expenditure to
ensure owner's compliance with basic standards of safety.

(5) Floor = level of minimum expenditure (still keeping the
vessel “operational”).

(6) Shaded area = margin of substandard operation which
the shipowner is able to operate a vessel subject to non-
detection by regulatory authorities (flag States and

JA-235

classification societies acting on behalf of flag States, port
States, etc.).

10. But what is more important in relation to the safety of
navigation and the prevention of pollution of the marine
environment is the difference between the level which
corresponds to the minimum level of expenditure to ensure
owner's compliance with international standards, and the so-
called “floor level", which corresponds to the minimum
expenditure keeping the vessel operational. There exists a
"shaded area" within which a shipowner can operate
substandard vessels’ subject to non-detection by one or a
number of regulatory authorities (flag States and classification
societies acting on their behalf, port States, etc.). The margin
of substandard operation for such a vessel ("shaded area") can
equate to a 13 per cent saving (US$ 500 per day or US$ 182
500 per year) on the aanual running cost. Similarly for a 40
000 dwt 1990 built product tanker working within the time
charter market, the margin of substandard operation equates
to US$ 650/day or US$ 237 250/year, equating to a 15 per
cent saving on the annual running costs.

**x *& *

* Substandard vessels deserve the qualification “substandard”
purely on the basis of shipboard and shorebased management, levels of
maintenance and training of the ship’s crew not being in accordance with
agreed international rules and standards.

JA-236

Il. LACK OF POLICING OF THE SHIPPING
INDUSTRY BY PRIMARY POLICING BODIES
(FLAG STATES AND CLASSIFICATION
SOCIETIES ACTING ON THEIR BEHALF) AND
INSUFFICIENCY OF PENALTIES FOR NON-
OBSERVANCE OF RULES AND STANDARDS

The role of the flag State

- It is the responsibility of the flag State to identify
instances of substandard operation which pose a serious
risk to safety of life at sea and the protection of the
marine environment. However, frequently, flag State
Administrations are not in a position to fulfil their
responsibilities in implementing international rules and
standards either directly or indirectly through
classification societies. No attempt has yet been made to
standardise the way in which flag State inspections
should be conducted, although the examination of
different ship registers reveals similarities in their
approaches.

18. Flag States, in order to comply with existing
internationally agreed rules and standards, as laid down in the
Law of the Sea text, have effectively to exercise jurisdiction
and control in administrative, technical and social matters
over ships flying their respective flags. In particular, flag
States are required to take the necessary measures to ensure
safety at sea, including the manning of ships, labour
conditions and the training of crews, the construction,
equipment and seaworthiness of ships. Flag States are
furthermore also obliged to ensure that each ship is in charge
of a master and officers who posses appropriate qualifications.
However, there is growing evidence showing a strong
correlation between marine casualties and certain flags of
registration. There are still a number of flag State

JA-237
Administrations not adhering to minimum standards of
supervision.
The role of classification societies

19. In the absence of flag State inspections, classification
societies, acting on behalf of flag States, have an ir portant
State’s enforcement powers behind them, which could
effectively mean much swifter penalties for non-compliance,
for example the inability of ships to leave port when their
certificates are not in order. The ultimate sanction for non-
compliance with the classification rules is the loss of class,
which is the basis for charter parties and insurance. Due to
different standards among the various societies owners can
"shop around" to keep their vessels in class despite the
inability to meet the rule requirements of the “holding”
classification society. However, it should be noted that
through IACS’ (International Association of Classification
Societies Ltd.) recently concluded Transfer of Class
Agreement it has been agreed that the gaining society accepts
the vessels for its classification oniy after all overdue surveys,
recommendations or conditions of class previously issued
co gio gram pga mma
losing society.

Soe iiiiiiibieity tt panties

- Given the present legal framework, penalties applied to
substandard vessels are, if they exist at all, relatively low
compared to the advantages obtained from non-
observance of international rules and standards.

20. In the present legal framework there is no provision to
apply penalties when a vessel is detected with deficiencies,
unless the deficiency represents a breach of conventions
containing a repressive mechanism (MARPOL, for instance).
The only penalty applied is the detention of the vessel.

JA-238

However, detention is not a strong deterrent. In the example
cited above, the off-hire statement shows a financial cost of
approximately US$ 16 000. Compared with the daily US$ 500
of financial benefit for owners who operate the vessel at the
floor level, this represents only 32 days of operation.

21. There are, at least, two main reasons as to why
administrative penalties should be applied. On the one hand,
this would contribute to eliminating the cost advantages of
running a substandard ship. On the other hand, this would
transfer the cost of control from the port authorities to the
shipowner. Considering that an average visit requires two
inspectors for two hours, Members of the Memorandum of
Understanding (MoU) estimated in 1992 that the average cost
of a visit amounts to 240 ECUs.° As the port authorities of the
MoU carried out 17 294 inspections during 1993,° this means
that, in 1993, port authorities invested at least 4 million ECUs
for inspections, although it has to be noted that the overall
cost of the inspections accrued to the port State are
significantly higher.

22. However, when deficiencies are detected, certain states
impose fees for the subsequent inspection of vessels. These
fees are based on the assumed cost of the visit (60 ECUs per
man per hour). This practice remains an exception.

23. Typical deficiencies detected during annual flag
State/classification society inspections demonstrate that, while
the majority are of a minor nature involving only small cost
savings, certain major deficiencies can involve substantial

> See The Memorandum of Understanding on Port State Control,
Annual Report 1992, page 4.

® See the Memorandum of Understanding on Port State Control,
Annual Report 1993, page 29.

JA-239

financial implications, particularly if they should have, but
due to non-detection have not, resulted in an immediate

disruption in the vessel's ability to trade. Existing penalties
for substandard operations are no deterrent: on the contrary,
if existent at all, their low level is almost an encouragement
to operate substandard, as savings by operating below
international norms and standards by far outweigh any
penalty.

Ill. LASTING SOLUTIONS TO COMBAT NON-
OBSERVANCE OF AGREED INTERNATIONAL
RULES AND STANDARDS NECESSITATE CO-
ORDINATED CO-OPERATION OF ALL
PARTICIPANTS IN INTERNATIONAL SHIPPING
OPERATIONS

IMO initiatives to improve international rules and
standards and their implementation

- IMO being the prime body for the adoption and the
implementation of international rules and standards,
its work is of the utmost importance for the

upgrading of flag State inspections;

- All IMO initiatives for a better monitoring of the
implementation of international rules and standards,
and an improved co-ordination of the actions against
substandard vessels, should be welcomed;

- By providing owners and operators with a useful
industry-wide organisational framework, the ISM
Code represents the latest example of a policy
towards the improvement of minimum standards of
safety and the phasing out of substandard vessels.

24. There is a compelling case for all flag States to

JA-240

responsibility effectively as non-compliance with international
rules and standards leads to unfair and thus unacceptable
competition. In accordance with decisions taken in the
International Maritime Organisation, flag States have to live
up to their obligations and make transparent the work of their
maritime administrations with regard to how they implement
and comply with IMO conventions and rules on safety and
pollution control.’

25. The monitoring and harmonisation of flag State
implementation of IMO rules and conventions would
contribute to a better co-ordination of flag States and
classification societies acting on their behalf. In particular, the
creation of a common database showing the safety status and
record of vessels (ISI - International Ship Information -

database) will effectively enhance the efficiency of the fight
against substandard operation.

26. Safety requirements need permanent upgrading. In this
field, the implementation of resolution A.741 (18) - the
International Management Code for the Safe Operation of
Ships and for Pollution Prevention (ISM Code) - is of the
utmost importance as it represents the latest attempt to
improve minimum standards of safety. Proper implementation
of the ISM Code will undoubtedly lead to a phasing out of a
number of substandard vessels and thus contribute to a "level
playing field" among shipowning companies. Since the
introduction of the ISM Code, an increasing number of

’ See Statement by OECD Member countries on the Enforcement
of International Rules and Standards in Maritime Transport
[SG/PRESS(94)53]. In addition to OECD Member countries the following
additional countries have subscribed to the statement: Bulgaria, the Czech
Republic, Estonia, Hungary, Korea, Latvia, Lithuania, Poland, Romania,
Russia and the Ukraine.

JA-241

shipowning and operating companies have committed greater

resources to "upgrading" their existing management systems.
Port State inspections should be further strengthened
and better co-ordinated

- Findings of vessel inspections, as conducted by flag
States and classification societies acting on their
behalf, demonstrate that there is still considerable
room for improvement, both in terms of the technical
condition of vessels and ship operating practices;

- Shortcomings, of the effectiveness of vessel
inspections by certain flag States and classification
societies acting on their behalf, force OECD
Member countries to call for improved and better co-

ordinated port State inspections;

- Enforced port State inspections would eliminate
substandard vessels and competitive advantages
obtained by shipowners who do not observe

27. Given the _ imeffectiveness of certain flag
Inspectorates are now widely viewed as a very, if not the
which must continue to act as a "safety net" for the flat States.
responsibilities as those of the flag States, are able to
investigate in detail the various safety aspects of vessels; they
go much further than just a mere double chec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0274%3A11. Public record. Not legal advice.