How much were the fish that got away worth? That's what federal jurors in the trial against Exxon will have to decide after they listen to dozens of biologists and economists try to assign numbers and dollars in the slippery business of projecting fish harvests.
In opening statements in phase two of the Exxon trial Monday, attorneys representing more than 10,000 fishermen told jurors that fishermen lost $978 million because of the 1989 oil spill in Prince William Sound.
Exxon attorneys said that number is way off, but didn't say what would be more accurate.
"Crude oil and fish don't mix," said the fishermen's attorney, Brian O'Neill. "You can't raise a family on an oiled fishery. . . . What we have to do is figure out what would have been caught but for the spill."
Exxon attorney Patrick Lynch agreed with O'Neill.
Oil and fish don't mix, he said. "They don't and they didn't. These fish live underwater and oil floats on top of water."
Exxon has always said the fishermen should be fully compensated, Lynch added, "but they are not entitled to make a profit."
Determining how many fish got away, what they were worth and the value of the subsistence harvest Natives lost is what phase two of this trial against Exxon is about.
This phase, expected to last four to six week, comes in two parts. During the first, jurors will calculate the commercial fishermen's losses. During the second, they will determine the Natives' losses.
Seven cities and six Native corporations are also seeking reimbursement for damages caused by the spill. Jury selection for their claims began in state court Monday. All together, the plaintiffs' attorneys estimate actual damages at more than $1.5 billion.
Phase one of the complex trial ended last week when jurors decided that Exxon and Capt. Joe Hazelwood acted recklessly in 1989 when the Exxon Valdez ran aground and spilled 11 million gallons of North Slope crude oil. The jury's decision means the oil company is liable for punitive damages, but the amount won't be determined until later this summer during a third phase of the trial.
There are 3,300 fishing permitholders in the spill area. Each of those permitholders has one to three deckhands, so 10,000-plus fishermen were hurt economically by the spill, O'Neill said.
Prior to the spill, the fishery was healthy, he said. "They were happy families with good futures." They are "people who chose this lifestyle to get away from the Exxons of the world."
When the total effect of the spill from 1989 through 1994 is looked at, the fishermen lost $978 million, O'Neill said. Their losses include a drop in the value of their fishing permits from $250,000 to $60,000 or $70,000.
As the 11 million gallons of oil spread through the Sound and around the Kenai and Alaska peninsulas, the state called off commercial fishing because of its "Zero Tolerance Policy." The theory behind the policy is that just one tainted fish could jeopardize the reputation of the entire fishery. So rather than risk that, all fishing was called off except near the hatcheries.
Based on the catches from 1985 through 1988, the 1989 harvest was expected to be one of the biggest yet, O'Neill said.
Not so, countered Lynch.
He pointed out that some of the areas that were closed because of the "Zero Tolerance Policy" had been closed the previous year for biological reasons. The state Department of Fish and Game was allowing the stock to rebuild and had planned to keep it closed in 1989, Lynch said.
Lynch also said that some of the numbers the plaintiffs have used for calculating losses are inaccurate.
"The way the Alaska Department of Fish and Game counted fish was wrong," he said. Plus, some fishermen like the Cook Inlet setnetters caught record harvests because their fishery wasn't closed.
"They did a lot better than if there wasn't an oil spill," Lynch said.
Salmon prices had peaked by the time of the spill, Lynch said. So the plaintiffs' claims that the oil spill hurt the value of Alaska salmon are unfounded.
"Experts were saying prices had peaked because more salmon is available," Lynch said, alluding to other countries that now produce and market farm-reared salmon. "Fisheries all over the world have been bringing lower prices."
In 1991 and 1992, there were record, healthy fish harvests in the spill area, Lynch said. But in 1993 and 1994 the salmon and herring fisheries collapsed.
"There is no denying that," Lynch said. But there also is no proof that the collapse is related to the 5-year-old spill. Instead, Lynch said, other factors may be at play.