In re the Exxon Valdez Alaska Native Class v. Exxon Corp.: cultural resources, subsistence living, and the special injury rule.

• Author: Panoff, Christopher V.

1. INTRODUCTION

   This Chapter takes a close look at the Ninth Circuit's recent decision in the case In re the Exxon Valdez Alaska Native Class v. Exxon Corp. (In re the Exxon Valdez).(1) The court dismissed the class action filed by a group of Alaska Natives who alleged damage to their subsistence way of life.(2) According to the Ninth Circuit, the damages they claimed did not meet the requirements of the special injury rule.(3) Part II of this Chapter gives a detailed analysis of the facts of the case and the reasoning of the Ninth Circuit. A firm understanding of the special injury rule is necessary to analyze the reasoning of the court and the significance of the court's decision. Accordingly, Part III of this Chapter examines the development of the special injury rule and clarifies its current legal status. Part IV examines cultural resources and the subsistence way of life and assesses their viability as a "special" injury.

2. THE NINTH CIRCUIT DECISION

   This Chapter discusses one of the latest decisions in the ongoing saga(4) resulting from the grounding of the Exxon Valdez in Prince William Sound, Alaska in 1989.(5) In re the Exxon Valdez involved a class of Alaska Natives (Class) who sued Exxon Shipping Company and Exxon Corporation (collectively Exxon), alleging the massive oil spill damaged their subsistence way of life.(6) This action was separate from any claimed economic injury(7) and the court found for the defendant, Exxon.(8)

   1. Facts

      On March 24, 1989 the Exxon Valdez ran aground in Prince William Sound, Alaska. The resulting oil spill dumped eleven million gallons of oil and blackened 2592 miles of beaches(9) By September 1989, Exxon faced over 153 lawsuits, including 58 class actions, and one Anchorage attorney estimated that by the end of the year, Exxon could face as many as 1500 individual suits. 10 By that same time period, Exxon had already paid more than $91 million to fishermen and others who lost income, and Exxon had spent more than $1 billion on cleanup.(11) Early estimates of cleanup costs Were conservatively placed at more than $2 billion.(12)

      The plaintiffs in In re the Exxon Valdez constituted a class consisting of "all Alaska Natives and Native organizations including but not limited to, individuals, Native villages, incorporated and unincorporated Native entities and associations and tribal entities, who engage in, rely upon, promote or preserve, wholly or in part, a subsistence way of life."(13) Later modifications to the class definition excluded all Native villages and government entities and limited the claim to 3455 individual Alaska Natives. In addition to claimed damage to a subsistence way of life,(14) the complaint alleged injury to archaeological sites and artifacts, natural resources, and property upon which the plaintiffs depend as part of their natural habitat and lives.(15)

      The cause of action was originally brought in state court and was later removed.(16) After removal, the plaintiffs separated their action into two parts: one for economic damages due to loss of harvest, and one for noneconomic damages due to alleged injury to the plaintiffs' subsistence way of life.(17) The claim for harvest loss was settled,(18) and upon request by the parties, the court issued an order directing final judgment(19) and granting Exxon's motion for summary judgment on all noneconomic injury claims asserted by the Class.(20)

   2. Reasoning of the Ninth Circuit

      The Alaska Natives brought their action under a maritime public nuisance claim.(21) The court held, and the Class stipulated, that the claim was subject to provisions of the Restatement of Torts regarding allowance of recovery for public nuisance.(22) The court defined the issue as whether cultural damage (damage to the subsistence way of life employed by the Class members) constituted compensable injury.(23) The court viewed the Class as attempting to add an economic character to its claim.(24) Because the parties settled the economic claims, the court strictly limited the claims to those it considered purely noneconomic.(25)

      The court focused on the effect the oil spill had on the communal life of the Alaska Natives.(26) In the view of the court, the damage suffered by the Alaska Natives varied only in magnitude from that suffered by all Alaskans.(27) Although the Alaska Natives may have suffered to a greater degree than others, such a difference in degree is not enough to constitute a special injury as required to permit a private action for a public nuisance.(28) In determining that the difference was in degree and not in kind,(29) the court found guidance in the Alaska Constitution(30) and applicable case law,(31) which gave all Alaskans the right to enjoy a subsistence way of life.(32) Accordingly, all Alaskans share a common right to "obtain and share wild food, enjoy uncontaminated nature, and cultivate traditional, cultural, spiritual, and psychological benefits in pristine natural surroundings."(33) The court also rejected the need to examine the strict liability provisions of the Alaska Environmental Conservation Act,(34) claiming that the relevant statutory provisions only applied to losses of economic benefits and were inapplicable to the case at hand.(35)

3. THE SPECIAL INJURY RULE

   The net result of the special injury rule is that the common law has been very slow to recognize the right of a private person to maintain actions based on public nuisance.(36) Accordingly, when there are large environmental disasters, such as the Exxon Valdez oil spill, individuals may not sue for damages resulting from the public nuisance without showing special injury. A brief study of the background of public nuisance actions and the special injury rule emphasizes the rationale for reliance on the rule in the past and the justifications courts would have for abandoning it in the future.

   1. Public Nuisance and the Origin of the Special Injury Rule

      1. Distinguishing Public Nuisance

         "Nuisance" is the French word for harm(37) Nuisance is "an interference with the use or enjoyment of land, or with a right of easement or servitude over the land."(38) There are private nuisances and public nuisances. Both are fields of tort liability, but it is only by an accident of historical development that they share the common name "nuisance."(39) While private nuisance is narrowly restricted to interference with interests in the use or enjoyment of private land, public nuisance is a "catch-all low-grade criminal offense" that involves interference with rights belonging to the entire community.(40) Public and private nuisances are no more related than any other two tort liabilities.(41) Whatever confusion existed between the two torts because of their similar names became even more troublesome once courts allowed private individuals to maintain actions for a public nuisance if they showed a special injury.(42) Public nuisance and private nuisance should be considered mutually exclusive areas of law. In this Chapter, only public nuisance is of concern.(43)

         Public nuisance includes interference with public health,(44) safety,(45) morals,(46) peace,(47) comfort,(48) and convenience(49) However, other offenses may also be considered.(50) The common thread is that all of these actions affect a common right shared by the general public.(51) Historic examples of actions that did not constitute a public nuisance include blocking access to a stream that could not be used anyway, frightening an unduly skittish horse, a door that only rarely opened onto a sidewalk, infrequently falling ice and snow from a building or structure, and a single call by a Jehovah's Witness.(52)

      2. Background and Development of Public Nuisance Torts and Special Injury Requirements

         The law provides various solutions for those trying to assert the public's interest in environmental quality.(53) However, those who turned to public nuisance law found it a very confusing subject at times.(54) The historic English definition of common nuisance included "any act not warranted by law or an omission to discharge a legal duty, which inconveniences the public in the exercise of rights common to all Her Majesty's subjects."(55) Until 1536, private actions for public nuisance were disallowed on the grounds that only the king could have a remedy for a crime.(56) For the first few centuries, public nuisance retained its status as a pure crime.(57)

         Eventually, public nuisance began to mesh with the concept of tort.(58) The first case to break away from the concept of allowing only the king to sue for public nuisance occurred in 1536.(59) That case stated that only the king could punish a common nuisance unless "one man has greater hurt or inconvenience than any other man had, and then he who had more displeasure or hurt, etc., can have an action to recover his damages that he had by reason of this special hurt."(60) This marked the humble beginning of the special injury rule.(61)

         The word "special" does not refer to any particular or specific type of damage, but rather to damage of any type or kind so long as it is unique to the plaintiff.(62) As a threshold, the alleged damage must be sufficiently substantial so as to be actionable.(63) Once the nuisance is actionable by a private litigant, the liability for creating the public nuisance can be based on intent, negligence, or even strict liability.(64)

      3. The American Law Institute's Restatement (SECOND) of Torts

         The American Law Institute (ALI) has worked on the concept of nuisance actions under tort law for some time. ALI developed at least eighteen drafts in preparing the current version of the Restatement of Torts.(65) Tentative Draft 17 of the Restatement expanded the definition of public nuisance.(66) In addition, Tentative Draft 17 was environmentally progressive.(67) With further revisions, the Restatement breathed "new life into private actions for public nuisance."(68) Notable improvements include the movement away from the...