Commercial fishers and American Indians – but not recreational anglers – can finally be compensated for expenses they incurred when last year’s oil spill took away their ability to feed themselves and their families using the seafood they would have caught in fouled Gulf waters.
So-called “loss of subsistence” claims have befuddled Kenneth Feinberg’s Gulf Coast Claims Facility since he took charge of BP’s $20 billion oil spill damages fund last August. In that time, the operation has paid more than 170,000 claimants for loss of income or profits due to the spill, but just 23 of the more than 16,000 subsistence claims filed.
Most of the claims have come from Vietnamese fishers and other fishing communities with a tradition of setting aside large portions of their catch for their families to consume and for gifts and bartering. But large numbers of claims also came from recreational fishers who wanted to be compensated for what they called “loss of enjoyment,” something Feinberg decided not to honor.
Subsistence claims are specifically allowed under the Oil Pollution Act, which governs oil spill damage compensation, but Feinberg’s operation had trouble calculating losses for something that isn’t generally well documented.
Feinberg’s team developed a new method for calculating subsistence claims March 28 and, after negotiations with nonprofit lawyers and community advocates, it was finalized late last week.
The claims facility began sending letters Monday to subsistence claimants requesting specific documents and directing them to dedicated claims specialists at Hammond-based Worley Catastrophe Services, a GCCF contractor.
“The GCCF will pay documented subsistence claims for Native American tribes and commercial fishermen – including Vietnamese fishermen and others who live off a portion of their catch,” Feinberg said. “We will not pay recreational fishermen claims if the claims simply involve ‘loss of enjoyment.’ Such claims cannot be documented. The sticking point has always been developing a credible, workable formula for determining damage in subsistence cases.”
The impasse was broken when GCCF said it would use scholarly studies to determine the amounts typically consumed by different groups of commercial fishers and by so-called “true subsistence fishermen,” namely affected Indian tribes like the United Houma Nation.
After initially planning to pay the wholesale, or dock, price of the subsistence portion of a claimant’s catch, GCCF also agreed to pay for the pre-spill retail costs of replacing that seafood. For those claiming losses for seafood they bartered, however, the price at the dock will be used.
Mark Moreau, whose Southeast Louisiana Legal Services participated in the negotiations, said he hopes the first payments will be made in the coming weeks.
But there are still some concerns. Feinberg is still trying to determine if an IRS Form 1099 will be filed with subsistence claims payments, something advocates argue is unfair because catch that is consumed by those who harvested it is not normally taxable.
And on Monday, a group of advisers hired by the state of Louisiana to help claimants sent a letter to Worley asking for clarification on key points, including whether GCCF would pay interim quarterly payments for subsistence losses and how the organization plans to “verify” a claimant’s level of consumption.
“The GCCF Revised Subsistence Methodology is vague and, depending on how they interpret some of the key concepts, could either be promising or problematic for proper interim compensation,” said May Nguyen, an adviser for Mary Queen of Viet Nam Community Development Corp. “Importantly, we defer to the court(s) for final adjudication of subsistence claims.”
David Hammer can be reached at email@example.com or 504.826.3322.