JUDGE REFUSES IMMUNITY BID BY HAZELWOOD

By SUSAN GALLAGHER
The Associated Press

FAIRBANKS- A federal judge Friday refused to block the state from prosecuting former skipper Joseph Hazelwood on charges stemming from the nation's worst oil spill.

U.S. District Judge Andrew Kleinfeld said it would be inappropriate for him to determine the scope of an immunity provision under which Hazelwood sought to have his case thrown out. The immunity issue should be decided by a state judge, Kleinfeld said.

Hazelwood spoke quietly to one of his attorneys several times during the proceeding, but did not address the court. The 43yearold mariner from Huntington, N.Y., came to Fairbanks because of the possibility a hearing requiring his participation would take place, said Dick Madson, one of Hazelwood's attorneys.

Hazelwood was fired from his job as an Exxon tanker captain soon after the Exxon Valdez ran aground in Prince William Sound on March 24, spilling nearly 11 million gallons of oil.

Hundreds of miles of the southern Alaska coastline were blackened, tens of thousands of birds and marine mammals were killed and at least two people died during the summer cleanup effort.

Hazelwood's request for federal protection from state felony and misdemeanor charges of recklessness, negligent discharge of oil and operating a vessel while intoxicated was based on the claim that he automatically received immunity by reporting the spill shortly after it happened.

Hazelwood has filed the same claim of immunity in state court, where a hearing is scheduled Nov. 29.

Kleinfeld, who referred extensively to previous cases that he examined to reach his decision Friday, said that although he was dismissing Hazelwood's complaint, it had raised serious questions for a state judge to consider.

"We'll go to state court," Madson said, after Kleinfeld issued his ruling. "We'll win there."

Hazelwood attorney Richard Friedman argued Congress promised people in Hazelwood's position that reporting incidents such as oil spills would not result in their statements being used against them.

"Congress did not promise a right to go to state court and fight about immunity," Friedman told Kleinfeld.

He said prompt federal intervention in the Hazelwood case made more sense than guiding it through the state court system, only to have the case eventually end up in federal court anyway because of challenges to state actions.

Friedman said the call in which Hazelwood notified the Coast Guard of the spill early the morning of Good Friday triggered the investigation into the disaster. A Coast Guard officer went to the Exxon Valdez, and based on suspicions about Hazelwood's condition, arranged for a state trooper to later give the captain a bloodalcohol test. Hazelwood failed the test.

"They knew nothing about the spill until he (Hazelwood) called," Friedman said.

He said virtually every piece of state evidence came as a result of that notification, and thus should not be used against Hazelwood. The state has no reasonable probability of obtaining a conviction, Friedman said.

"It seems like a real possibility someone might have noticed an oil spill the size of Rhode Island whether or not it was called in," Kleinfeld observed.

But Friedman insisted that under legal precedent, the inevitable discovery of the spill didn't negate Hazelwood's immunity.

In documents filed with the court, state attorneys said evidence against Hazelwood was gathered independently of his report to the Coast Guard.

State prosecutor Bob Linton told Kleinfeld that even if the judge believed the state could not win a conviction, he was obliged to weigh case law favoring the state's arguments against immunity. Federal intervention remains an option if it appears Hazelwood's rights are not protected in state court, Linton said.

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