HAZELWOOD WINS APPEAL
POLLUTION CONVICTION OVERTURNED; STATE LOOKS TO SUPREME COURT

By MARILEE ENGE
Daily News reporter

ANCHORAGE- Capt. Joseph Hazelwood was illegally prosecuted for dumping nearly 11 million gallons of crude oil into Prince William Sound, the Alaska Court of Appeals said Friday in a decision that overturned his misdemeanor oil pollution conviction. Under federal law, the captain of the tanker Exxon Valdez was immune from prosecution for the nation's largest oil spill because he called the Coast Guard to report that his vessel was "hard aground" on Bligh Reef and "leaking some oil," the appeals court ruled.

Superior Court Judge Karl Johnstone was mistaken when he said that Hazelwood should stand trial on pollution charges because the huge spill would inevitably have been discovered whether or not the captain reported it, the court said.

"Congress has barred prosecution in this case because the state obtained its evidence by the exploitation of Hazelwood's report of an oil spill," three appeals judges wrote.

"By requiring immunity today, the federal statute encourages immediate reporting in the event of a spill tomorrow."

Hazelwood was not on the bridge when the tanker ripped its hull on Bligh Reef early on the morning of March 24, 1989. He had left the ship in the hands of a third mate and a helmsman whose skills were questionable. Ten hours after the grounding, a blood test showed that the captain had been drinking that night.

From early in the case, Hazelwood's lawyers argued that he was immune from prosecution because he promptly reported the spill.

"We have always been very confident that we were on sound legal ground," said attorney Tom Russo.

At a 1990 trial, Hazelwood was acquitted of three charges, including drunkenly operating the tanker. He was convicted of one charge of negligently discharging oil and sentenced to clean beaches as punishment. His sentence was suspended while he appealed.

"Captain Hazelwood has been vindicated in this case, not only on the facts but on the law," Russo said. "Hopefully people will start to realize that he is not the person responsible for the grounding of the Exxon Valdez."

Hazelwood, who is at sea training maritime students, told his attorneys he felt relieved and vindicated by the court's decision. The sea captain was unfairly made a scapegoat for the nation's anger over the environmental disaster, said Russo.

State lawyers said they will appeal the decision to the Alaska Supreme Court. The state maintains that Hazelwood's brief radio call to the Coast Guard did not earn him full immunity.

"The state is confident the Supreme Court will embrace the original findings of the trial judge," said District Attorney Ed McNally.

Environmentalists who were outraged by the massive spill that tarred one of Alaska's most beloved coastal regions were disappointed with the ruling.

"I don't think it's appropriate for anyone to get a prize for telling the truth," said Dorothy Smith, a spokeswoman for Greenpeace. "It's his obligation as captain to make the report, but it doesn't take away the blame."

"Any skipper that leaves the bridge under hazardous conditions and leaves the bridge under control of people who are less than competent has some complicity," said Rick Steiner, a Cordova activist. "If the law indeed allows that, the law needs to be changed."

In pretrial hearings, the state's witnesses testified that the grounding of the Exxon Valdez would have been discovered and investigated even if Hazelwood had failed to tell the Coast Guard about it. But the appeals court said that didn't matter. Since the state got its evidence Hazelwood's report, as a result of an immunity promise the state can't go back on that promise just because it turned out it wasn't necessary.

In addition, prosecuting Hazelwood violates Congress' public policy considerations, the judges said.

"The Congressional purpose in granting immunity for the immediate report of a spill was to encourage prompt notice in as many cases as possible, so that abatement efforts could be undertaken without unnecessary delay, and so that the government would become aware of smaller spills that might otherwise go undetected."

Johnstone was under the mistaken impression that the immunity provision of the Federal Water Pollution Control Act of 1972 was meant to apply primarily to small spills, the court said. A review of the legislative history shows the law was "also unquestionably meant to apply to large spills," the judges wrote.

They said their reading of the law would "undoubtedly be a bitter pill for many Alaskans to swallow." But the statute left them no choice.

"The unparalleled environmental devastation wrought by the grounding of the Exxon Valdez is hardly lost upon this court," they wrote.

"But while we may feel sorely tempted, as individuals, to recast the law in a mold better suited to our personal sense of justice, we are bound, as judges, to resist this temptation."

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