Waltzer & Wiygul Law Firm

Reuters | Mar 11, 2012, 08.58PM IST

VENICE (LOUISIANA): The phone at Joan Strohmeyer’s fishing lodge has been ringing steadily since 2010, but not many of the calls are from customers who want to go fishing. Mainly, they are from lawyers who want her to sue British oil company BP Plc.

The tidy, 62-room Lighthouse Lodge is perched near the Gulf of Mexico on Highway 23, in the marshlands between Breton Sound to the east and Bataria Bay to the west, an easy jumping off point for what used to be some of America’s most prized commercial and sport fishing waters.

That was before an explosion on April 20, 2010, on the Deepwater Horizon drilling rig, which killed 11 workers and spewed oil for 87 straight days. It soaked hundreds of miles of Gulf Coast shoreline in caramel-colored oil and sent Strohmeyer’s clients fleeing to less troubled waters.

Now, Strohmeyer faces a dilemma. She can sign onto a $7.8 billion settlement struck between BP and lawyers representing people who, like her, have lost money because of the worst oil spill in U.S. history. Or she can take her chances and try to strike a better deal on her own.

All along the Gulf Coast, in a tight-knit community that stakes its reputation on the size of the catch, business owners are wrestling with questions of compensation. Some have accepted a settlement and wonder whether they should have held out for more. Some are angling for an offer. And some, like Strohmeyer, are still pondering their options.

At 80 years old, she has already been through one disaster — Hurricane Katrina flattened her lodge in 2005, forcing her to rebuild it.

She said she has avoided filing a claim so far in part because her lodge got a boost in the weeks after the spill, when cleanup workers filled the guest rooms and slept on the couches in the lobby.

“I’ve never sued anybody in my life,” she said. “I hate to start now.”

But, since the beginning of the spill, even before she lost any money, lawyers have been urging her to file a claim.

“Even before the cleanup workers started coming, hell, I had lawyers from Houston calling me,” Strohmeyer said. “I have been told that I really ought to file a claim, and I’m looking at it.”

Not “chump change”

Down the road, in Venice, Louisiana, Raymond Schmitt wonders if he got short-changed.

Schmitt is co-owner of Saltgrass Lodge, a three-story, eight-room, antebellum-style lodge. He and his partners settled last year with the Gulf Coast Claims Facility, a $20 billion trust set aside by BP in the weeks following the spill and overseen by Washington lawyer Kenneth Feinberg.

“My partners wanted to settle, and so we did,” said Schmitt, a longtime charter fishing boat captain. “I don’t know if we settled for enough or not.”

Schmitt declined to disclose the amount of the payment, and said it covered roughly two years of lost revenue. “It was not a great amount of money but it wasn’t chump change either,” he said.

Feinberg’s fund paid out $6.1 billion on about 225,000 claims, an average of about $27,000 per claim.

Schmitt summed up the dilemma he faced like this: “Do we take this now and survive the next two years and try to keep going, or do we try to fight ‘em and go bankrupt in the meantime?”

Schmitt and his partners filed their claim without the help of a lawyer, to avoid potential fees. “We felt if we did get an attorney and had to fight them, it would take a year and we’d probably end up with the same amount after the lawyers got everything else,” he said.

Pressure to keep the business afloat helped the partners make up their minds. “We took the money and we’ve got our fingers crossed,” said Schmitt, who has been spending heavily on advertising to draw bookings for the spring fishing season.

A lot of talking

In Boothville, just north of Venice, Brooke Andry is still waiting for a deal, as her business sags.

“When the fishing industry bottoms out, the lodging business is gone,” said Andry, who owns the Kingfish Lodges and Venice Palms Lodge. Andry said she filed claims with Feinberg, but has seen no action.

“I think Feinberg and his group did a lot of talking and not a lot of action,” Andry said. When she met with Feinberg’s representatives, she was required to bring extensive documentation of her losses, but Feinberg’s team was never prepared. “They’d just put us off and say ‘We’ll see you in another 30 days,’” she said.

A spokeswoman for Feinberg declined to comment for this story. “I believe the GCCF has successfully fulfilled its mandate,” Feinberg said in a statement on March 2.

Andry said she will decide whether to sign onto the $7.8 billion settlement with BP after looking over the details with her brother, an attorney who has advised her so far. She said she hasn’t decided whether to resubmit her claim or pursue a lawsuit on her own.

“People come from all over the world to come fishing,” Andry said. “But if they’re only going to catch two fish instead of ten, they figure they might as well go to Destin,” a beach resort in Florida.

For now, Andry is stuck in limbo between the old claims processing regime run by Feinberg and a new one to be established under the settlement between BP and plaintiffs’ lawyers, which won’t be operational for several weeks.

The new claims facility, which still must be approved by U.S. District Judge Carl Barbier in New Orleans, will offer settlements to business owners who lost profits from the spill, as well as home owners and individuals, based on set formulas for lost revenues.

BP estimated the total cost of settling with plaintiffs at $7.8 billion, but the amount could rise and is not subject to a cap, plaintiffs’ lawyers say. BP and the plaintiffs’ group have declined to estimate the number of potential claimants.

Both the old and the new claims methods have their detractors. Feinberg has been criticized for slow-walking the claims process and applying over-rigid terms that excluded some legitimate claims.

Critics of the new fund, primarily lawyers who represented clients before Feinberg’s fund, warn that it could allow lawyers representing clients who haven’t settled yet to collect exorbitant fees.

Houston lawyer Tony Buzbee, one such lawyer, said big fees to the plaintiffs’ group, called the Plaintiffs’ Steering Committee, could eat up funds that should go to individuals and businesses.

For plaintiff lawyers, potential fees are enticing. If the settlement is worth $7.8 billion, as BP claims, that could yield $468 million in legal fees, calculated at 6 percent. BP declined to comment on the claims process for this story.

Doing without

Robert Wiygul, an attorney in Ocean Springs, Mississippi, who represents about 1,000 clients who had been seeking payment from Feinberg’s GCCF, said he was optimistic that the new settlement process would resolve his clients’ concerns.

“The amount that’s available looks like it’s going to be something that’s going to protect people adequately from the future risks of this oil spill,” said Wiygul, an environmental attorney who represents a wide range of clients from shrimpers and crabbers to other business owners.

Another option for victims is also on the table: opting out of the settlement and suing BP directly.

Opting out could yield the highest potential payout, because it could include punitive damages if Barbier rules in a coming trial that there was gross negligence on the part of BP or its well partners, said Blaine LeCesne, a law professor at Loyola University in New Orleans. BP vigorously contests any claim to gross negligence.

LeCesne said plaintiffs who sign onto the settlement could leave billions of dollars on the table in potential future punitive damages. Those who opt out “will have extraordinary leverage in negotiating a very generous settlement that will include anticipated punitive damages,” he said.

For the plaintiffs, the choice is uncertain: Accept a quick payment now, or opt out of the settlement and hope for a better deal in the future.

But for some, time and money are running short. At the Lighthouse Lodge, Strohmeyer said she had to give employees a raise to keep them from being lured away by shoreline cleanup contractors. She’s losing money, she said. “I’ve been doing without for some time now,” she said.

Meanwhile, the lawyers keep calling.

By SABRINA CANFIELD

NEW ORLEANS (CN) – With billions of dollars at stake, the trial over the worst environmental disaster in U.S. history was pushed back a week as settlement talks between BP and oil spill plaintiffs’ attorneys continued.
The trial had been set to open today, Monday, but was rescheduled to begin in a week, on Monday, March 5.
Postponement is “for reasons of judicial efficiency and to allow the parties to make further progress in their settlement discussions,” according to the order issued Sunday afternoon by U.S. District Judge Carl Barbier.
Barbier will preside over the trial without a jury.
The trial involves claims of 116,000 plaintiffs who seek compensation for lost revenue and personal injuries from the oil spill. The federal government also has claims for damages against BP and the other defendants, including fines for Clean Water Act violations. Punitive damages are possible. Billions of dollars are at stake.
BP and plaintiff attorneys issued a joint statement on Sunday to confirm the trial’s delay, saying there “can be no assurance that these discussions will lead to a settlement agreement.”
Eleven people were killed in the April 20, 2010 Deepwater Horizon explosion that injured 17 others and set off the worst oil spill in U.S. history. Nearly 5 million gallons of oil were spilled in 87 days.
The broken well was finally capped July 15, 2010, leaving more than 650 miles of coastline soaked in oil.
The trial is the first of three phases, and will assign fault among the defendants for the explosion and sinking of the Deepwater Horizon. This portion is expected to last into May.
The second phase will assess the defendants’ nearly 3-month-long effort to cap the Macondo well.
Phase three will examine cleanup efforts.
BP is one of several defendants accused of negligence before the spill. Other defendants include Transocean, the owner of the Deepwater Horizon; Cameron International, the manufacturer of the failed blowout preventer; and Halliburton, which provided cement services to the rig.
It was unclear Sunday if a settlement now would affect whether subsequent phases of the trial take place. In all, the three phases could last most of the year.
Trial analysts speculated that BP will want to settle now rather than face embarrassing evidence during trial.
Judge Barbier ruled in previous weeks that BP’s extensive history of criminal charges and the maximum air and water pollution fines it paid cannot be brought into this phase of the trial because of time considerations.
Last week, a land trust that owns 35,000 acres of barrier lands, crucial to hurricane protection and affected by the oil spill, filed for summary judgment in Barbier’s court, claims BP has withheld information about its oil spill cleanup and has not funded the whole response or cleaned up all the oil on its land.
The Edward Wisner Donation is a landholding trust whose 35,000 acres include 9 miles along the Gulf of Mexico in the area known as Fourchon Beach.
Fourchon beach is the closest stretch of coast to BP’s ill-fated Macondo well. More than 600 oil platforms sit within a 40-mile radius, which produces roughly 17 percent of the U.S. domestic oil supply.
In addition to being rich in oil, Gulf waters bordering Fourchon Beach are among the most biologically diverse in the world.
The Wisner Donation says oil began washing ashore at its Fourchon Beach property about a month after the Deepwater Horizon explosion.
“Without the Wisner Donation’s Fourchon property, the spit of remaining land on either side of Bayou Lafourche would quickly erode, uniting the Barataria/Caminada and Terrebonne basins and exposing the underbelly of Louisiana to the forces of nature,” according to the memorandum in support of motion for partial summary judgment. “If this were to pass, the historic coastal communities of Cocodrie, Dulac, Montegut, Isle Jean Charles, Pointe-Au-Chien, Lockport, Lafitte and Grand Bayou could become relics of the past, with Houma and New Orleans greatly threatened. If this were to pass, south Louisiana’s unique heterogeneous cultures will be forever changed.”
Wisner adds: “The survival of this critical coastal habitat, and the nationally significant energy infrastructure on Donation property, is directly dependent on the survival of Fourchon beach. The contamination from the Deepwater Horizon oil spill has introduced additional risks for the planned restoration project, and has complicated efforts to save this area.”
Wisner claims: “Despite the massive cleanup operation, oil can still be found throughout the Donation’s property: on the sandy beach, in the washouts and natural bayous, in the salt flats, mangrove and saltwater marshes found behind the beach crest and on the waterbottoms both in front of and behind the beach.”
And, Wisner says: “Although oil also washed deep into the salt marsh behind the beach at Fourchon, BP has never assessed the location of contamination in the marsh, despite requests from the Donation.”
Wisner says that “BP has refused to pay for required monitoring and analysis on the Donation’s property. The practical effect of BP’s refusal to abide by its payment obligations is that funds which would have gone to support philanthropic causes are instead being diverted to fund Deepwater Horizon spill response.”
It claims that “BP’s breach of the Access Agreement literally began as soon as it was signed. On November 9, 2010, the Donation sent a letter to BP’s counsel outlining BP’s breaches of the agreement over the preceding three months. These breaches included failure to pay response costs, failure to provide contact information for people working on the property, and timely notice of meetings affecting the property.”
Neither BP nor the Edward Wisner Donation was available for comment.
A Courthouse News reporter visitedWisner’s Fourchon Beach property in September 2011 to survey tar mats and oil uncovered from Tropical Storm Lee.
Oil was apparent all along the beach.
Forrest Travirca III, field inspector of the Wisner Donation portion of Fourchon Beach, told Courthouse News at the time that bird mortality had increased since the oil spill. He said many juvenile diving birds, including pelicans, had shown up dead along the beach. All had at least one broken wing.
Juvenile dolphins with umbilical cords still attached had also washed up on shore, according to accounts. Travirca said he and his colleagues had found 20 to 25 dead juvenile dolphins on the beach in the past year.
“We live in a different world now,” Travirca said of the changes he had seen since the oil spill.
Wisner’s motion was not the first legal document to accuse BP of shoddy oil spill cleanup. In January, a whistleblowerwho worked for BP in cleanup management filed a lawsuit claims that BP fired him after he refused to skew cleanup records in Mississippi.
In the weeks after the explosion, as oil gushed into the Gulf, coastal Louisiana residents voiced concerns that BP’s objective, first in failing to cap the well, and subsequently in failing to respond immediately to the oil, was to contaminate the wetlands and fragile coastline in order to get mineral rights to the oil beneath. Without endangered wetlands to protect, mineral rights would be easier to obtain, residents said.
The Wisner Donation seeks a partial summary judgment to enforce its access agreement with BP.
It is represented Robert Wiygul of Ocean Springs, Miss. and Joel Waltzer of Harvey, La.

By: | Associated Press
Published: February 15, 2012 Updated: February 15, 2012 – 10:26 AM

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GULFPORT, Miss. (AP) The Sierra Club and other members of the 12 Miles South Coalition say Mississippi is rushing toward drilling in state waters without addressing concerns about tourism, the environment or economics.

The group tells The Sun Herald (http://bit.ly/yiYfS2) that the Mississippi Development Authority appears to be using questionable numbers touting the economic benefits from offshore drilling for natural gas, the price and demand of which is at an historic low.

“There’s no reason to be in such a rush that you don’t get the rules right,” said Jeffrey Bounds, an engineer working with the 12 Miles South Coalition, which has fought offshore drilling in Mississippi for years.

“Once the state issues leases, it’s too late to go back and get the rules right,” Bounds said.

Earlier this month, the National Park Service said allowing drilling within one mile of Horn and Petit Bois islands would spoil the islands’ wilderness character. Casino operators said while they’re not opposed to drilling, they don’t want to see tourist areas overrun by industrial equipment, boats and workers.

The statements came during MDA’s a 43-day public comment period and in public hearings on its draft of offshore leasing and seismic surveying rules.

The coalition said MDA and Gov. Phil Bryant haven’t addressed key risks associated with drilling, including subsidence and loss of the barrier islands, contamination of the Mississippi Sound and economic losses due to damage of the Coast tourism industry. And, they said, state officials don’t appear to be sincerely interested in public input or open dialogue about drilling.

“There’s a national park (Gulf Islands National Seashore) out there for gosh sakes,” said 12 Miles member Louie Miller, director of the state Sierra Club. “That’s like Yosemite. That’s like the Grand Canyon a national treasure. We can’t make sure they’re protected?”

Bryant’s spokesman Mick Bullock issued a statement: “Gov. Bryant is moving carefully through the process to implement this nearly eight-year-old law that the Legislature passed in 2004. Although required to take public comments for a minimum of 25 days, MDA has kept the public comment period open for 43 days to allow more time for input. He will continue to work with MDA, DMR and DEQ as they move forward in finalizing these rules and regulations.”

Bounds said that “while Alabama is not a paragon, there is wide recognition that they have been fairly environmentally sensitive … They did their homework before they allowed it. MDA has not done its homework.”

Bounds said Alabama, while allowing drilling in some areas, has protected its tourist areas from drilling with a 15-mile “viewshed buffer” and other measures and that the state has strict rules against pollution from rigs and related industry.

Louis Skrmetta, a coalition member and owner of Ship Island Excursions, said the barrier islands draw thousands of tourists a year because of their pristine beaches and scenic views.

“The Gulf Islands is one of the few things Mississippi has to compete with West Florida and Gulf Shores,” Skrmetta said.

The casino operators recommended MDA include in its leasing- and seismic-testing rules language from a 2004 offshore oil and gas law that prohibits activity in most of the near-shore waters of the Mississippi Sound.

Many environmentalists and some coastal business leaders still oppose any offshore exploration or drilling and have said even after most of the Sound was put off limits, the barrier islands and other areas could still be harmed.

Casino operators and some other business leaders reigned in their protest when the 2004 law was written to secure protection for most near-shore water. Only two areas, on the Alabama and Louisiana lines, would allow exploration and drilling nearshore.

Opponents have said the Legislature could easily come back later and open water inside the Sound to drilling, and the Alabama-line area is near fragile habitat.

“I don’t think a high priority has been place on enforcement to date, and they don’t have the infrastructure in state agencies for enforcement,” said Robert Wiygul, an environmental attorney working with the coalition.

The 12 Miles group said MDA has placed no restriction on rig size, aesthetics “or shown in any way the attention to detail shown by Alabama in protecting its waters and tourism” and that no budget has been provided for enforcement and environmental monitoring or protection.

MDA has said offshore drilling and exploration will not harm the environment or tourism. They say the state has an estimated 350 billion cubic feet of natural gas offshore and stands to receive $250 million to $500 million over however many years it takes to pump it out.

___

Information from: The Sun Herald, http://www.sunherald.com

http://www2.wsls.com/entertainment/2012/feb/15/drilling-opponents-say-miss-should-slow-down-ar-1690993/

by Amy McCullough

Published: December 15,2011
KEMPER COUNTY CLEAN COAL PLANT HEARD BEFORE STATE SUPREME COURT

JACKSON — Three Mississippi Supreme Court justices say that so far, they can’t find the evidence that state regulators used to justify their decision to allow Mississippi Power Company to build a $2.4 billion clean coal plant under construction in Kemper County. If the high court rules that the Commission is in violation of state statute requiring it to present its findings in sufficient detail, the plant could be in jeopardy.

Justices Michael K. Randolph, Jess H. Dickinson and Randy G. Pierce heard oral arguments yesterday in Sierra Club’s appeal of its case against Mississippi Power and the state Public Service Commission

Environmentalist group the Sierra Club first sued the power company and state regulators in Harrison County Chancery Court after the Mississippi Public Service Commission gave the company permission to construct the $2.4 billion plant in May 2010. The Chancery Court upheld the Commission’s decision after a February hearing.

Sierra Club calls the plant “dirty, expensive and unnecessary” and is concerned about environmental and rate impacts to customers. As with all public utility infrastructure projects, over time customers must pay for the improvements plus interest to the company.

Of the three state Public Service Commissioners, Leonard Bentz and Lynn Posey voted to approve the plant, and Brandon Presley dissented.

In April 2010, the Commission issued an order stating that the project was too risky for ratepayers but could be allowed if the company met certain financial restrictions, one of which was capping the plant’s cost at $2.4 billion.

Mississippi Power filed for a rehearing, and in May the Commission issued a second order approving the plant with eased financial restrictions — including allowing a 20 percent cost overrun for the project, thus capping its cost at $2.88 billion.

The Sierra Club says the Commission’s May decision was arbitrary and capricious. They claim Bentz and Posey “flip-flopped,” overturning the Commission’s decision through the second order without sufficient effort in the record to support it. Also, Sierra says the Commission did not comply with state statute when it failed to detail the specific evidence from the record that would support its decision to ease Kemper’s financial restrictions.

At the hearing Justice Pierce asked: “What happened between April 29 and May 26 … What additional facts were submitted during that time frame that made the Commission feel comfortable …?”

Mississippi Power’s attorney Ben Stone said Sierra Club had brought the suit against Kemper because the group is opposed to all coal generation. The Kemper project, he said, is about “the future of coal generation in the world. It’s very clean. It’s very friendly to the environment.”

Justice Dickinson said the reason the Court was there was not to determine the merits of the plant but to determine whether the Public Service Commission had met its legal obligations.

Dickinson addressed the Commission’s May decision to ease financial restrictions on the plant, saying: “So far, I don’t find anything in the Commission’s order itself and haven’t yet found in the record what would help me understand that the Commission is justified in its conclusion that this risk is balanced.”

Stone never directly answered questions regarding what evidence was used to support the May decision. Additionally, Stone said Mississippi Power does not believe that the statute requiring the Commission to expressly detail reasons for its decisions applies in this case.

The Sierra Club’s attorney, Robert Wiygul, closed by saying that since the Commission did not spell out the reasons for its May order, the justices and others were left to speculate about what specific evidence was used to support its final decision.

Justice Pierce said he was concerned about the lack of detail in the Commission’s May order. In its April order, he said, the Commission expressed concern about the high risk of the project since it would be using new technology, but the May order did not state why the Commission’s concern was abated.

Justice Randolph said his obligation was to “make sure a governmental agency charged with this responsibility doesn’t throw a Solyndra on the ratepayers of Mississippi and that we don’t see another beef plant.”

The common term “beef plant” in Mississippi refers Mississippi Beef Processors, an economic development project for which the state co-signed more than $50 million of taxpayer funds before the company went bankrupt shortly after it opened in 2004.

Justice Dickinson said Kemper was “a very important case … a complex case that affects the lives of a lot of people” and said the Court would take its time to review the 30,000-page record and possibly require additional information from parties involved.

The Court could do a number of things, including requesting additional briefs, requiring supplemental information for the record and inviting the parties back for another hearing before all nine justices – an unusual requirement. After a case is argued, the Court usually rules within a nine-month period. Various rulings are possible, including a reversal or a remand to the Public Service Commission, which could require them to provide reasons justifying the May order.

Plans for the Kemper Count coal plant include using new technology to convert low-grade, on-site Mississippi lignite coal into a gas, which can be used to produce electricity. The plant — which will produce 582 megawatts of new generation and should be operational by 2014 — should be the first commercial-scale plant in the nation to capture a majority of its carbon dioxide emissions, thus making it clean.

The Kemper plant will serve nearly 190,000 Mississippi Power customers in 23 southeastern Mississippi counties. The Commission determined in early 2010 that additional electric generation would soon be needed in the Mississippi Power service area. A power plant fueled by natural gas was discussed as an alternative to the Kemper plant. Mississippi Power argued that generation fired by natural gas — the prices for which have been historically volatile – would be more expensive than using stable, lignite coal as a fuel source. Independent Power Producers, who sell supplemental, natural-gas fired electricity to utilities, intervened in the Commission hearings and noted that natural gas forecasts predict the fuel will have low, stable costs for the next 20 years, due to a new technology called “fracking” which has resulted in new and abundant supplies of natural gas.

http://msbusiness.com/2011/12/justices-question-pscs-approval-kemper-plant/