Legal technicality derails $10m redress for oil spill

A legal technicality involving birds unexpectedly derailed a much-anticipated $10 million settlement yesterday of the environmentally calamitous Buzzards Bay oil spill.

A federal judge was expected to approve the unprecedented $10 million deal, which had been agreed on by government prosecutors and lawyers for Bouchard Transportation, whose barge last year spilled an estimated 98,000 gallons of viscous, industrial-grade oil into waters off southeastern Massachusetts.

But the state Probation Office, which advises judges on punishments, said the total should be nearly $7 million less, arguing in a memo that a close reading of the legal documents in the case indicated that government prosecutors had charged Bouchard with killing only a single bird, even though environmentalists estimate thousands of birds died.

US Magistrate Judge Marianne B. Bowler, presiding yesterday over what was anticipated to be a quick court hearing, postponed completion of the case, saying she was "not comfortable" with the settlement in light of the Probation Office's finding. Both sides will discuss the matter with Bowler in an Oct. 7 conference call.

The US attorney's office, which prosecuted the case, had no comment.

Thomas Russo, lead attorney for Bouchard, yesterday said: "This is really an issue between the US attorney and the Probation Office. We have the money, and we were prepared to give it to the court today. . . . We were hoping to wrap this up today."

The snag comes more than a year after Bouchard's B-120 oil barge went adrift in Buzzards Bay on April 27, 2003, hitting a rock outcropping that punctured its hull. Already, $38 million has been spent, at Bouchard expense, to clean the affected water and shoreline. Weeks after the spill, 478 corpses of federally protected birds were recovered, including common loons, buffleheads, razorbills, and 18 other species. Of the $10 million settlement plan, $7 million would be set aside for wetland sanctuaries for birds.

But in the legal document specifically charging Bouchard on this count, government prosecutors refer only to a single bird being killed. Thus, the Probation Office said Bouchard, instead of paying $7 million, should pay only $15,000, the maximum penalty for killing a protected bird.

In a Sept. 10 court filing, prosecutors explained themselves: "Because the statute's reference to migratory birds is in the singular, the charging language, as a matter of due process, must be drafted the same way." The filing argued that legal precedent commands the judge to consider the vast ecological damage caused by the spill.

Raja Mishra can be reached at rmishra@globe.com.