WASHINGTON -- The U.S. Department of Justice and the state of Alaska are closing the books on the 26-year legal battle over the Exxon Valdez oil spill.
In court Thursday, the state and federal government will tell Anchorage federal Judge Russel Holland, who has overseen the case since the 1991 settlement, that they are dropping any right to claim more funds from Exxon.
The 1991 civil settlement with Exxon granted a state and federal trustee board $900 million over 10 years to manage damage to natural resources -- then the largest environmental settlement ever.
The deal included a "reopener" clause: The state could file a claim by 2006 for significant remediation needs that were unknown at the time of the settlement. The provision was a steep hill for the state; it required a comprehensive remediation plan.
"The reopener provision was something that the federal government wanted," said Charlie Cole, who was Alaska's attorney general at the time the federal-state settlement was being negotiated.
The reopener was a particularly hard-fought part of the settlement. "It took us two or three days just to draft one or two sentences," Cole said. In practice, invoking it may have been difficult: "I guess it's just a matter that it's difficult to prove."
Now, nine years after the state first considered filing a claim, "a fairly laborious and very detailed scientific process" came up short of a legal reason to compel Exxon to pay more, said U.S. assistant attorney general John Cruden.
And "in fact, the money that they provided us was sufficient for restoration," Cruden said. "This is a success story."
And with that, the "long saga of Exxon Valdez, with regard to the federal government, is over," he said.
Cruden called the reopener provision a "pretty high bar to meet" and said the damage would have to be "catastrophic" and something "that nobody could have anticipated."
"That did not happen," Cruden said.
Many around the state reacted with disappointment to the announcement Wednesday afternoon, when the state and federal government filed a brief with the federal district court in Anchorage.
They charged the state with giving up too soon and letting Exxon get away with short-changing the continuing state cleanup efforts.
Dave Janka, who runs Auklet Charter Services in Cordova, feels that Exxon is getting off easy. "You and I would be forced to bankruptcy to clean a fuel tank in our backyard, and the richest entity in the world is able to walk away from hundreds of them in a wilderness area. Unbelievable," he said.
The decision to drop the "reopener" case doesn't mean restoration is complete or that the state will be left high and dry for future efforts, state and federal officials cautioned.
Padded by years of growing interest, the civil restoration fund still has more than $200 million to spare. And the Exxon Valdez Oil Spill Trustee Council -- scheduled to meet Nov. 12 -- will continue to exist as long as there is money to be spent, federal and state officials said.
Restoration needs to continue and there is still oil lingering at several beach sites. Some resources will never recover, said Steven Mulder, Alaska's chief assistant attorney general.
Whales with injured reproductive systems can't be fixed, he said.
After years of pressure, the state sent Exxon a "demand" letter in 2006, asking for $92 million to identify remaining toxic oil, monitor and remove it, and check the safety of subsistence food.
At the time, the state had discovered "fairly high levels of toxicity that had drained in … certain beach areas," said Craig O'Connor, special counsel with the National Oceanic and Atmospheric Administration. The concern was the oil was preventing full recovery of harlequin ducks and sea otters, and that was the underlying claim to the "reopener" clause.
But since then, the ducks and sea otters have returned to pre-spill levels, Mulder said.
"Now, because otters and ducks have recovered, the state and feds are throwing in the towel -- despite the fact the Prince William Sound herring population remains devastated from the spill," said Cook Inletkeeper Executive Director Bob Shavelson.
Those disappointed with the decision said the government should have revised the plan or argued that the focus was the unanticipated toxicity of the remaining oil.
"I haven't read anything that suggests that the herring population … have fully recovered," said state Rep. Andy Josephson, D-Anchorage.
"I think that a case could have been made that unforeseen damage remained to habitat and to certain species," Josephson said.
But "I think it may very well be the end of the road," Josephson added. "I'm disappointed."
Attorneys have long argued, however, that it is difficult to conclusively link the herring crash to the spill, and there were struggles in devising a plan to correct the problem.
Of the species that are still not totally recovered, "Herring, I think, is the one that everybody gravitates to," said Robert Haddad, chief of the assessment and restoration division at NOAA.
Scientists have been working "for many, many years trying to understand the fact that the herring bounced back after the spill and then all of a sudden crashed. They've not really made a comeback," Haddad said.
Whether that is due to the spill or not is difficult to say conclusively, Haddad said. "So clearly if you tried to say that's all due to the spill, you probably wouldn't be able to carry the day on that."
"And I think that when you look at the other ones that are in the 'not-recovering' column, it's the same thing. They are species that are having trouble all throughout the Pacific Northwest area. In some cases they're species that were on the decline prior to the spill," Haddad said.
State Sen. Berta Gardner, who favored pushing forward on the reopener clause, said she met with state attorney general Craig Richards on this issue this year.
"He was looking for the data which shows which species are impacted in ways that weren't known at the time -- looking for hard science," she said. "And scientists that I've talked to say it's absolutely there," she said. But "if the AG's office felt the burden of proof had not been met, it's hard to argue with them about that myself.
"People may disagree with the decision they made, but I think they gave it an honest shot. I have no reason to think otherwise," Gardner said.
Rick Steiner, an environmental consultant and marine scientist, emphatically disagreed. He called the decision an "unconscionable betrayal of public trust." The move "just underscores this transcendent lesson … there is no reason to trust government and oil industry promises," Steiner said.
Exxon did not respond Wednesday to a request for comment.
Nathaniel Herz and Yereth Rosen contributed to this report.