Alaska Sport Fishing Association v. Exxon Corporation highlights the need to take a hard look at the doctrine of parens patriae when applied in natural resource damage litigation.

I. INTRODUCTION

Under the doctrine of parens patriae, the government represents all of its citizens when it is a party in a suit involving a matter of sovereign interest. In this capacity, the government acts as a trustee of the public. Increasingly, parens patriae actions are brought in cases involving natural resource disasters resulting from oil spills and hazardous waste releases.(1) With natural resource damage suits referred to as the new frontier of environmental litigation,(2) the use of parens patriae actions promises to become more prominent. Thus, the implications of government actions and their impact on private causes of action must be examined.

In the recent case of Alaska Sport Fishing Ass'n v. Exxon Corp.,(3) the Ninth Circuit used the doctrine of parens patriae to affirm the dismissal of the Alaska Sport Fishing Association's (ASFA) class action complaint against Exxon.(4) The sport fishers sought damages that they argued the government could not recover for the lost use of natural resources resulting from the 1989 Exxon Valdez off spill.(5) The district court held that the doctrine of res judicata barred the Alaska Sport Fishing Ass'n suit, because a consent decree between the United States government, the State of Alaska, and Exxon - in a suit commenced after the Alaska Sport Fishing Ass'n class action - settled all public claims including lost use of natural resources.(6) On appeal, the Ninth Circuit affirmed the district court and held the United States government and the State of Alaska, acting as public trustees under section 311(f) of the Clean Water Act (CWA)(7) and section 107(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),(8) had authority to recover for all lost use damages caused by the oil spill.(9) The result: a denial of any direct relief for ASFA's claim.

The Ninth Circuit employed the doctrine of res judicata and dismissed ASFA's class action, thereby extending the government enormous parens patriae authority to subsume private claims.(10) The court's use of res judicata to usurp private claims is disturbing, given that the doctrine normally bars a claim only when three elements exist: 1) there is a final judgment on the merits in the prior suit, 2) the prior and present suits have identical claims, and 3) the prior suit involved the same parties or their privies.(11) The a final consent decree is a judgment on the merits,(12) the holding in Alaska Sport Fishing Ass'n raises legitimate concerns regarding the last two res judicata elements: identity of issues and privity of the parties. In Alaska Sport Fishing Ass'n, the issues underlying the plaintiffs' claims regarding lost use were not identical to the issues underlying the claims of the governments of the United States and the State of Alaska.(13) In addition, there are serious concerns regarding the existence of privity between the governments and ASFA, such that ASFA's interests were adequately represented.(14)

However, by affirming the lower court and allowing a subsequent case to extinguish the earlier filed class action, the Ninth Circuit painted the government's authority in broad strokes that arguably dismissed legitimate claims as merely a "hypertechnical reading" of the underlying regulations.(15) The Ninth Circuit's expansive reading of the governments, authority to represent the public in parens patriae actions enables a court to find privity in cases when it might not clearly exist. In so doing, the Ninth Circuit sent a clear message to potential plaintiffs and defendants. Potential plaintiffs in natural disaster cases must have evidence of specific harm to a concrete interest, preferably a commercial or property injury, apart from what the general public might suffer. Additionally, claims based on state law might not be worth pursuing due to a risk that subsequent state action will extinguish the suit. For potential defendants facing a large number of lawsuits as a result of a natural resource accident, the best option may be entering into a settlement agreement with the government to extinguish private or public claims.

The outcome in Alaska Sport Fishing Ass'n demonstrates the need for both legislatures and courts to rethink the expansive applications of the parens patriae doctrine and its relationship to res judicata's concept of privity. Although the court dismissed ASFA's claim as a purely public cause of action settled by the government consent decree, a closer look reveals a private claim.(16) Ironically, ASFA's claim Was not substantially different from a class action suit brought on behalf of commercial fishers that resulted in a judgment against Exxon for more than five billion dollars in punitive damages.(17) The resulting question is to what extent it is desirable to have the government, instead of the individuals, represent arguably private interests.

This Chapter analyzes the Ninth Circuit's decision and its potential impact on the conduct of natural resource accident litigation. Part II outlines the Exxon Valdez oil spill and subsequent litigation. Part III discusses the arguments raised in the Alaska Sport Fishing Ass'n litigation as well as the holdings of the district court and Ninth Circuit. Part IV critically examines both the ability of the governments to recover all lost use damages as well as the court's decision and reasoning, as well as the issue of privity between the governments and ASFA, the concept of parens patriae, and how the courts have over-extended the doctrine. Finally, the Chapter concludes that a new view of the parens patriae doctrine is necessary.

II. THE Exxon Valdez Oil and Subsequent Litigation

A. The Exxon Valdez Oil Spill

On March 24, 1989, eleven million gallons of crude oil spilled into Alaska's Prince William Sound when the Exxon Valdez, an oil tanker the length of three football fields, hit a reef just after midnight.(18) The Exxon Valdez spill, the largest oil spill in United States history,(19) contaminated more than 1,275 miles of Alaskan shoreline.(20)

At the time, reports of the oil spill called it an "unprecedented ecological disaster" for the region.(21) Part of the tremendous impact caused by the spill stemmed from both its location in a remote and pristine region abundant with fish and wildlife,(22) and its timing, the beginning of fish spawning and bird migration seasons.(23) The adverse effects of the oil spill were overwhelming. It caused the contamination of between 2,500 and 6,000 square miles of ocean and the deaths of countless animals,(24) including 3,500 to 5,500 sea otters(25) and hundreds of thousands of birds.(26) At least eleven species of birds experienced a significant population decline.(27) Despite this unrivaled damage and views to the contrary,(28) Exxon maintains that Prince William Sound verges on fun recovery.(29)

More than five years after the spill, Exxon's total bill for the Valdez off spill rings in at almost $9 billion.(30) This includes more than $2 billion that Exxon spent on direct cleanup.(31) Exxon employed more than twelve hundred workers for two years to remedy the area.(32) While the beach cleanup nears completion, court battles over the spill promise to continue for many years.

B. Overview of Exxon Valdez Litigation

In the aftermath of the Exxon Valdez oil spill, thousands of plaintiffs(33) - commercial fishers,(34) local governments,(35) Native Americans,(36) and others(37) - filed suits against Exxon Corporation, Exxon Shipping Company, and the Exxon Pipeline Company (collectively known as Exxon), Alyeska Pipeline Service Company,(38) and the State of Alaska for injury to property, businesses, and other interests allegedly caused by the spill. In addition, numerous claimants sought relief for such private losses pursuant to the special process established by the Trans-Alaska Pipeline Authorization Act (TAPAA),(39) while others resorted to the claims facility established by Exxon for persons and businesses with provable private losses.(40) ASFA sought a different form of relief, suing Exxon on behalf of a class of recreational fishers who actively used the area affected by the oil spill (a total of 130,000 recreational users), and seeking to recover the value of their lost use of natural resources that occurred during the course of the cleanup.(41) ASFA based its claim upon a variety of causes including negligence, nuisance, and violation of an Alaska state statute imposing strict liability for the release of hazardous substances.(42)

Following the filing of the Alaska Sport Fishing Ass'n suit, the governments of the United States and the State of Alaska sued Exxon for natural resource damages as a trustee of the public.(43) Alaska also sued in its capacity as parens patriae.(44) These two suits eventually led to a government settlement and consent decree that the district court and the Ninth Circuit later held barred ASFA's suit on grounds of res judicata.(45)

C. Government Consent Decree

In March 1991, the United States and the State of Alaska filed suit against Exxon in their capacities as "trustees of the public" under section 311 of the Clean Water Act (CWA)(46) and section 107(f)(1) of the Comprehensive Environmental Response, Compensation, and liability Act (CERCLA).(47) Both the United States and Alaska state governments sought damages for restoration of the environment and compensation for lost public uses of natural resources.(48) On March 13, 1991, the governments and Exxon entered into a settlement agreement and proposed consent decree.(49) No one sought to intervene.(50) However, numerous comments filed by public and private litigants (including ASFA) urged the district court to reject the decree.(51) Both the Alaska House of Representatives and the district court rejected this first settlement.(52) Exxon, Alaska, and the United States then slightly modified their settlement agreement and proposed consent decree, filing on September 25, 1991.(53) The Alaska legislature approved the settlement, and the district court, in turn, approved the consent decree and entered it as a final judgment on October 8, 1991.(54) The settlement and consent decree required Exxon to pay the governments at least $900 million to restore the environment in return for a release from all government claims, present and future, including all claims for lost public uses of natural resources.(55)

The consent decree recited that the governments acted in their parens patriae capacities as co-trustees for the public:

The United States and the State represent that it is their legal position that only officials of the United States designated by the President and state officials designated by the Governors of the respective states are entitled to act on behalf of the public as trustees of Natural Resources to recover damages for injury to Natural Resources arising from the [Exxon Valdez] Oil Spill under Section 311(f) of the Clean Water Act, 33 U.S.C. [sections] 1321(f).(56)

The specific damages to natural resources that the consent decree aimed to cover were broadly defined to include:

compensatory and remedial relief recoverable by the Governments in their capacity as trustees of Natural Resources on behalf of the public for injury to, destruction of, or loss of any and all Natural Resources resulting from the Oil Spill...including...compensation...for the loss of use value, non-use value, option value, amenity value, bequest value, existence value, consumer surplus, economic rent, or any similar value of Natural Resources....(57)

However, the consent decree also provided that the settlement was not intended to impact those not directly represented by the government as a "trustee of the public," including those suffering a direct private harm: "Nothing in this agreement, however, is intended to affect legally the claims, if any, of any person or entity not a Party to this agreement."(58)

Following the consent decree, Exxon moved for summary judgment against ASFA and other recreational-use plaintiffs.(59) Because the district court believed that the sport fishers and other recreational use plaintiffs failed to allege a distinct private injury, the court eventually granted the motion to dismiss.(60) Exxon also attempted to dismiss Native American suits based on the settlement agreement with the government but was only partially successful.(61)

II. Alaska Sport Fishing Association v. Exxon Corporation:

The Litigation

ASFA filed its lawsuit in state court on June 21, 1989, seeking both injunctive and monetary damages for the loss of use sustained by members of the class of sport fishers.(62) Thereafter, on July 14, 1989, ASFA joined in an amended consolidated class action complaint seeking similar relief.(63) ASFA's class action alleged various causes of action "including negligence, nuisance, and violation of a state statute imposing strict liability for the release of a hazardous substance" against Exxon for lost use of the natural resources in and around Prince William Sound as a result of the Exxon Valdez oil spill.(64)

In August 1989, the National Wildlife Federation (NWF) and several other environmental groups also filed suits in state court against Exxon, alleging similar causes of action.(65) After consolidation of these class actions with the ASFA class action,(66) this collective group of trust plaintiffs Med a motion on September 3, 1991 for certification of a Conservation Trust Class under Federal Rule of Civil Procedure (FRCP) 23(b)(2) for mandatory injunctive relief to create a conservation fund, or in the alternative, under FRCP 23(b)(3) for damages for lost use and creation of such a fund from any undistributed damages remaining after a class distribution.(67) The parties stressed they were not seeking relief for purely private harm but rather harm to public natural resources that private parties. could recover.(68)

On October 22, 1991, the conservation trust plaintiffs responded to the government's consent decree by filing a reply on class certification. The conservation trust plaintiffs argued that they did not seek to challenge the government consent decree but rather wanted relief "supplementary to, and not in conflict with" that obtained by the governments.(69) Exxon removed the trust class plaintiffs to federal court by alleging that certain statements in the reply collaterally attacked the consent decree and therefore raised a federal claim.(70) Once in federal court, Exxon moved for summary judgment alleging that the doctrine of res judicata barred the trust class plaintiffs' claims based on the consent decree.(71)

The district court denied the plaintiffs' motion for remand and concluded that the plaintiffs implicitly moved under FRCP 60(b)(3)(72) for relief from the consent decree.(73) The court then concluded that res judicata "precluded further claims for public relief."(74) The court dismissed outright the environmental groups' claims, concluding that the groups failed to allege any private claims.(75) However, the court gave ASFA thirty days to amend its complaint in order to "better allege their uniquely private claims"; claims distinct in kind and harm from that suffered by the public at large.(76)

ASFA filed an amended class action complaint alleging that its recreational loss(77) was of an "active, in situ use, distinct in kind from loss of `passive use,' suffered by the public at large" for which the government sought relief.(78) ASFA also alleged that the government could, by statute, only recover natural resource damages for "residual resource injury" or "resource injury which is unremedied by cleanup."(79) Therefore, ASFA alleged, claims under both state statute and common law tort theories seeking to recover for lost use values of natural resources that were eventually remedied through cleanup should not be barred by res judicata.(80) This distinction between loss of use from unremedied natural resource damages and loss of use from remedied resource damages formed the central focus of ASFA's claim.

The district court, nonetheless, dismissed ASFA's complaint on res judicata grounds and held that the governments could recover damages based upon all loss of use from the onset of the discharge through cleanup.(81) Judge H. Russel Holland ruled that the governments had obtained relief as trustees for all public claims, and "that the sport fishers responded to . . . [the consent decree] by filing a complaint on behalf of 130,000 persons, in effect filing a complaint on behalf of the public."(82) The court also rejected ASFA's attempt to distinguish its claims from the governments by narrowly framing the issue as an argument over the government's ability to recover for only "passive" uses verses ASFA perceived claim involving loss of active uses.(83) Judge Holland concluded that "[w]hat the sport fishermen desire is to act as trustees. This position has already been filled to the preclusion of the sport fishermen."(84) ASFA appealed.

On appeal, the Ninth Circuit addressed two issues. First, whether the governments had authority to recover, as trustees of the public under the CWA and CERCLA, all lost-use damages resulting from the oil spill.(85) If the governments did have such authority, it would help establish a sufficient identity of issues between the governments' consent decree and ASFA's claim, thus satisfying one of the requirements of res judicata.(86) A second issue was whether privity existed between the governments, as trustees of the public, and ASFA. If privity existed,(87) the final requirement of res judicata would be established and ASFA's claim would be barred.(88)

In affirming the lower court, the Ninth Circuit dismissed ASFA's arguments as "strained and hypertechnical reading[s]" and ruled that the governments, as trustees of the public, did have authority to recover for all lost-use damages resulting from the Exxon Valdez oil spill from the time of release until restoration.(89) The court also ruled that because the consent decree expressly provided that all lost-use damages were recovered, there was a sufficient identity between the issues involved in both suits for the previously-entered consent decree to establish one of the necessary elements of res judicata.(90) In addition, the Ninth Circuit ruled that when a state is acting in its parens patriae capacity, it is presumed to represent the public interest.(91) Because the governments maintained that they were operating "in all capacities for their citizens," the sport fishers, as members of the public, were parties within the meaning of res judicata and, thus, their suit was barred.(92)

IV. Critique of the Alaska Sport Fishing Association v. Exxon

Corporation Decision

The doctrine of res judicata,(93) as applied by the Ninth Circuit, is designed to preclude future litigation on claims or matters that have previously been determined.(94) The doctrine has been developed almost entirely by the courts and is "very much a common law subject."(95) The notion of res judicata originally developed in Roman law, stressing the finality and preclusive effect of a judgment.(96) The doctrine was subsequently carried over into both English(97) and American common law and can be summarized by two traditional maxims: first, that no person should be twice vexed by the same claim; and second, that it is in the public interest that there be an end to litigation.(98)

The Ninth Circuit, however, in applying the doctrine of res judicata, found an identity of issues when it did not exist. In addition, the court's expansive reading of the doctrine of parens patriae for the purposes of privity raises serious questions about whether it is time to place viable limitations on the doctrine.

A. Identity of Issues and the Governments' Authority to Recover for All

Natural Resource Lost Use Values

The first issue the Ninth Circuit addressed was whether the governments of the United States and Alaska, acting as trustees for the public under the CWA and CERCLA, had authority to recover for all lost-use damages caused by the off spill.(99) If the government did not have authority to recover for the damages that ASFA sought there would be an insufficient identity of issues and, thus, res judicata would not preclude ASFA from maintaining its suit.(100)

Exxon argued that in the "five years of litigation, the Recreational Use Plaintiffs have never alleged any injury to their persons, their property, or their businesses associated with the Exxon Valdez oil spill."(101) Rather, they "sought to collect damages associated with the lost recreational use of the natural resources affected by the oil spill on behalf of a class that includes every member of the public who might have visited Prince William Sound or other affected areas for recreational purposes."(102) According to Exxon, the governments had already recovered damages for the public and, thus, ASFA's claims were barred by the traditional notion of res judicata.

ASFA argued that it sought recovery of what the Natural Resource Damage Assessment (NRDA) regulations prohibit the governments from recovering: the lost use resulting from resource injury that eventually is mitigated during the course of cleanup.(103) ASFA stressed that its cause of action was for loss of use during the cleanup which was not, by law, able to be recovered by the State of Alaska and the United States government. Therefore, ASFA argued that the governments lacked statutory authority to recover for the damages sought by ASFA and, thus, res judicata did not apply.(104)

Exxon's position in the litigation was that the governments, as trustees, could recover for all damages to natural resources held in the public trust.(105) CERCLA provides:

The President shall designate . . . the Federal officials who shall act on behalf of the public as trustees for natural resources under this chapter and section 1321 of [the CWA]. Such officials shall assess damages for injury to, destraction of, or loss of natural resources for purposes of this chapter and such section 1321 [of the CWA] . . . . (106)

CERCLA further specifies: "In the case of an injury to, destruction of, or loss of natural resources . . . liability shall be to the United States Government and to any State for natural resources within the State . . . and to any Indian tribe . . . ."(107) Exxon argued that neither the CWA nor CERCLA contemplates any liability to individuals or private organizations for lost use of natural resources;(108) rather, argued Exxon, natural resources are held in the public trust and only the government can pursue damage claims against Exxon. The Ninth Circuit, in a relatively short opinion, agreed with Exxon and upheld the district court.(109) The Ninth Circuit held that the United States and the State of Alaska, acting as trustees for the public (in their parens patriae capacity) under the CWA and CERCLA, had authority to recover for all lost-use damages caused by the Exxon Valdez oil spill.(110) As a result, the consent decree between the governments and Exxon barred ASFA's private claims for lost recreational use under the doctrine of res judicata.(111)

The Ninth Circuit, however, misframed ASFA's argument as solely a before-versus-after cleanup issue and did not focus on the level of cleanup and whether the governments could recover for lost use, both before and during the natural resource cleanup, which eventually were mitigated or remediated.(112) ASFA would have conceded that the governments generally have broad powers to recover certain natural resource damages.(113) Section 311(f)(4) of the CWA empowers both the federal and state governments to recover damages incurred "in the restoration or replacement of natural resources damaged or destroyed as a result of a discharge of oil."(114) To achieve these goals, the CWA directs the President or the authorized representative of a state to "act on behalf of the public as trustee of the natural resources" and requires that all monies recovered by such trustees "be used to restore, rehabilitate, or acquire the equivalent of such [damaged] natural resources."(115) In the consent decree, the governments settled claims for environmental restoration damages and compensation for lost public uses of natural resources under section 311 of Clean Water Act and section 107 of CERCLA.(116) Thus, ASFA did not challenge the government's ability to recover restoration and replacement costs, or the cost to government to cure the residual resource injury that remains unmitigated or unaddressed by "response actions" such as cleanup.(117) Rather, ASFA argued that it had "a distinct claim for lost use of the injured beach and water before and while they were being cleaned."(118) Rather than resting solely on the issue of precleanup, ASFA instead focused on the inability of the government to recover for lost uses, both before and during cleanup, when those lost use values were eventually mitigated.

According to ASFA, under the CWA and CERCLA the governments could recover only actual costs incurred in the removal of oil(119) and the "costs or expenses incurred by the federal government or any state government in the restoration or replacement of natural resources damaged or destroyed."(120) as Support, ASFA pointed to the regulations(121) promidgated under CERCLA(122) directing the Department of Interior (DOI) to adopt NRDA regulations to assess restoration and replacement costs under the CWA.(123) The NRDA regulations state that recreational loss of use that arises out of resource injury later cured (or mitigated) by cleanup, is not necessarily included in government recovery.(124) Restoration and replacement actions are to be "in addition to" response actions, and the regulations expressly provide that the only natural resource damages recoverable by the government are the residual portions of resource injuries that response actions fail to mitigate:(125)

[CERCLA] and the Clean Water Act (CWA) . . . provide that [Federal and State agencies authorized to act as] natural resource trustees may assess damages to natural resources resulting from a discharge of oil or a release of a hazardous substance covered under CERCLA or the CWA and may seek to recover those damages. This part [43 C.F.R. part II] . . . provides a procedure by which a natural resource trustee can determine compensation for injuries to natural resources that have not been nor are expected to be addressed by response actions . . . .(126)

These unmitigated damages are determined by comparing the baseline level of services existing before the accident with the level or anticipated level of services that exist after the completion of any mitigation efforts or response actions.(127)

To the extent that a response action addresses the resource damage, the NRDA, regulations attempt to avoid "double counting" by removing the costs of those response actions from the damage calculations. "Double counting" results if a party must pay for both the cleanup of a damaged resource and for the damages done to the resource which are eventually mitigated by the cleanup.(128) The NRDA regulations address this desire to prevent double counting:

(a) In any action filed pursuant to ... sections 311(f)(4) and (5) of the CWA, a natural resource trustee . . . may recover:

(1) Damages . . . (ii) As determined in accordance with [subsections] 11.80 through 11.84 of this part and calculated based on injuries occurring from the onset of the discharge or release through the recovery period, less any mitigation of those injuries by response actions taken or anticipated . . . . (129) Because Exxon mitigated the effects of the oil spill that caused the loss of use to the sport fishers, the governments could not recover damages for that particular harm. Rather, the regulations suggest that the governments should have recovered only for residual natural resource damages unmitigated by cleanup in addition to restoration or replacement costs under the CWA and CERCLA.

This view concurs with what courts see as the basic purpose of the CERCLA natural resource damage provisions, which "is to make the polluters pay the cost of restoring or replacing damaged resources or acquiring the equivalent."(30) This is exactly the point at which ASFA sought to draw a line between those damages recoverable by the government and those recoverable by private citizens. ASFA only wanted recovery of what the statutes and regulations prohibit the governments from recovering: the loss of use that results from resource injury that is eventually mitigated during the course of cleanup.(131)

Figure 1 illustrates the recovery sought by ASFA:(132)

When an oil spill or hazardous waste release occurs, it injures resources and services or human use declines (graph point 1 to 2). As the resource recovers, services and use start to return to "baseline"(133) conditions as the result of cleanup efforts, natural recovery, restoration, and replacement (graph point 2 to 3). If cleanup ends without a complete return to baseline for all services (graph point 2 to 4), as in the Exxon spill,(134) the government may seek damages for that remaining amount, portion A which represents the loss of use and value that the NRDA regulations seek to measure.(135) Area B represents the loss of use that the public and plaintiffs suffered but, because it arose out of resource injury eventually cleaned up, the governments could not seek damages for it.

For example, if the oil spill prevents a sport fisher from fishing in Prince William Sound for one year, that person has suffered a tangible loss.(136) If during that year the government and any potentially responsible private parties clean up the area and return it to its previous condition, the government can recover for nothing save its cleanup costs. The government's ability to recover restoration costs and lost use values is limited to areas or resources not remedied by cleanup. ASFA sought recovery for loss of use by the public during that limited time the public was unable to use the area while cleanup progressed. ASFA argued that the government could not recover for those individual damages during this time span because the loss arose out of a nonresidual resource injury. Thus, the sport fishers' loss was different and distinct from the natural resource damages the governments recovered in the consent decree, and, therefore, ASFA's claims should not have been barred by res judicata because there was no substantial identity of issues involved.(137)

Plaintiffs pointed out that cleanup of the Exxon Valdez spill occurred between 1989 and 1991. Exxon's experts measured damages for recreational loss in sport fishing, pleasure boating, hiking, viewing, and sport hunting at $3.8 million for 1989.(138) If the response and cleanup were completed by 1990, as Exxon claims, then "that is $3.8 million the governments could not pursue [in natural resource damages]" and that the sport fishers could pursue.(139)

However, the Ninth Circuit's brief opinion almost casually rejected ASFA's argument as a "strained and hypertechnical reading of the DOI regulations that is inconsistent with the statutes, the policy underlying them, their relevant legislative history, and the relevant case law."(140) The court affirmed Exxon's position: "[The governments] recovered for the very same damages plaintiffs now seek here. The Consent Decree expressly released Exxon from `any and all civil claims' that the governments brought or could have brought against Exxon under TAPAA or state law."(141) The court added that "it simply makes no sense to reserve a portion of lost-use damages for recovery by private parties."(142) The court ig nored ASFA's intent to use any money recovered to create a conservation fund[143] and stressed that, unlike trustees, private parties are not bound to use recovered sums for the restoration of natural resources or the acquisition of equivalent resources.[144]

B. Privity of Parties and Parens Patriae

Furthering its res judicata analysis, the Ninth Circuit addressed whether sufficient privity existed between ASFA and the government entities involved in the consent decree, to satisfy the requirements of res judicata.[145] The doctrine of parens patriae is often invoked procedurally, as in Alaska Sport Fishing Ass'n, as the basis for a government to assert claims for recovery of natural resource damages as a trustee of the public.[146] The rule regarding who is bound by an earlier judgment is straightforward: those who are parties to the original litigation or those in privity with them may be bound.[147] In assessing whether privity exists between parties sufficient for res judicata, the courts tend to focus the exan-dnation on whether the nonparty's interests were fully and adequately represented.148 While ASFA's arguments concentrated on whether there was an identity of issues sufficient to bar the sport fishers' claims under res judicata, there are also serious questions regarding the Ninth Circuit's finding of privity between the State of Alaska and ASFA.[143] Not only did the State of Alaska face its own potential liability as a result of the oil spill at the time it was negotiating the consent decree with Exxon, but also the state had to balance its financial interests regarding Exxon; both issues raise questions about the state's ability to be an adequate representative. If privity did not sufficiently exist between ASFA and the State of Alaska, ASFA's state claims should not have been barred by the consent decree. Additionally, the basic doctrine of parens patriae, as applied by the Ninth Circuit and other courts, has become so detached from its original uses in American common law as to require a serious reevaluation of its role in natural resource accident litigation.

1. The State of Alaska Was Not a Clear and Adequate Representative

for the Purposes of Privity

The district court, nonetheless, had concluded that the sport fishers were privies of the governments under the doctrine of parens patriae.150 The Ninth Circuit, in upholding the district court, correctly noted that under existing case law, the state has a sovereign interest in its natural resources and presumably represents the interests of all its citizens when it is a party to a suit involving a matter of such sovereign interest.[151] This presumption of adequate representation, the Ninth Circiut found, coupled with the consent decree (which expressly provided that the governments were acting in their trustee capacity), meant that ASFA, composed of members of the public, was a party to the government suit within the meaning of res judicata.[152]

A closer evaluation raises serious questions regarding the adequacy of the State of Alaska to represent the sport fishers. One problem with allowing the State of Alaska to enter into the consent decree was that the state faced potential liability for its role in the Exxon Valdez spill. Alaska, it was noted, had potential liability for damaging errors ... in the form of complacency."[153] Both Exxon and a large number of other plaintiffs sued the State of Alaska for the actions it did and did not take in the wake of the spill. The central focus of these suits was whether the state contributed to the impact of the spill by refusing to allow Exxon to use chemical dispersants to help break up the oil in Prince William Sound.[154] Additionally, some plaintiffs also claimed that negligence on the part of state officials was a contributing factor in the cause of the oil Spill.[155]

In addition to its own potential liability, the situation forced the State of Alaska to balance several competing interests: the need to fully restore natural resources and the economic concern of the off industry that has a tremendous financial impact on the state's economy.[156] Although governments balance these interests all the time, such balancing does not necessarily result in adequate compensation for damages or justice being done for all individuals.

In an effort to protect its particularized interests, ASFA could have sought to intervene in the governments' suit at the beginning of the negotiations that eventually led to the consent decree or could have tried to set aside the consent decree after it was Med. However, ASFA chose not to do so, because, given the nature of natural accident litigation, both avenues would likely have come little chance of success.

In non-parens patriae litigation, an individual seeking intervention is normally only required to make a minimal showing that representation of his interest may be inadequate.[157] However, under the parens patriae doctrine, the test for intervention becomes much more stringent when the applicant for intervention is a citizen of the state that is already a party to the suit. In this situation, the Supreme Court requires the applicant to demonstrate "some compelling interest in [its] own right, apart from [its] interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state."[158] And even then, if the suit involves a matter of sovereign interest, the state is strongly presumed to represent the interests of all of its citizens.[159]

Thus, to intervene in a suit ... in which the state is already a party, a

citizen or subdivision of that state must overcome this presumption of

adequate representation. A minimal showing that the representation may be

inadequate is not sufficient. The applicant for intervention must demonstrate

that its interest is in fact different from that of the state and that that

interest will not be represented by the state.[160]

Considering the court's opinion in this case, this burden would have been almost impossible for ASFA to meet. Plaintiffs' second option, to set aside a consent decree, requires a showing of fraud, collusion, or a conflict of interest on the part of the state.[161] Unfortunately, a state's representation of varied interests, as faced by the State of Alaska, is not sufficient to meet these standards and with not set aside a consent decree.[162] So any attempts by ASFA to set aside the decree would have likely been denied.

In general, parens patriae actions allow the government a great deal of latitude in litigating quasi-sovereign interests and in representing the public at large. While res judicata for private litigants normally requires a substantial identity between the parties' interests,[163] parens patriae suits lack this tight fit. Rather, a parens patriae action can assume a tight fit under the presumption of adequate representation where one does not necessarily exist.

2. The Doctyine of Parens Patriae Has Been Over-extended and Should

Be Reevaluated

The courts general use of the parens patriae doctrine in natural resource accident litigation, and in this case in particular, demonstrates the need for a fundamental rethinking of its future application in similar cases. While the Ninth Circuit correctly applied parens patriae law to this case in a general sense, that application of the governments parens patriae authority evidences a disturbing trend of ever-increasing government power. The government historically invoked parens patriae authority either to protect those who could not protect themselves or when individual litigation was inadequate.[164] Today, the doctrine has become detached from its origins. Because of its expansive reach, the doctrine of parens patriae risks that the government, as omnipotent protector, could become an omnipotent tyrant just as easily. The greatest danger is when the government enters litigation after a viable plaintiff previously filed suit and then subverts those private claims.[165]

a. Origins of Parens Patriae in Common Law

Parens patriae originates in the English constitutional system. The belief was that the sovereign, by virtue of the individual's title, retained certain powers and duties referred to as the "royal prerogative."[166] These powers and duties were said to be exercised by the sovereign in its capacity as father of the country.[167] Traditionally, these powers were restricted to taking care of those who could not help or protect themselves,168 such as infants, idiots, and lunatics."[169]

In the United States, the courts expanded the doctrine of parens patriae from these historic origins.[170] Early common law held that this prerogative paren patriae is inherent in the supreme power of every State ... [and] is a most beneficent function ... often necessary to be exercised in the interests of humardty, and for the prevention of injury to those who cannot protect thermselves."[171] As the American view of parens patriae developed, the state no longer simply "stepped in" to represent those unable to represent themselves.[172] Rather, the state could protect any "quasi-sovereign" interest as a trustee for the public.[173] This theory permitted the state to bring a suit to represent the general well-being of the public, or patriae.[174]

To maintain a parens patriae action, the state must clearly express a "quasi-sovereign" interest[175] that represents 'a set of interests that the state has in the well-being of its populace."[176] The determination of what would constitute a "quasi-sovereign" interest is settled on a case-by-case basis.[177] However, "[i]n order to maintain [a parens patriae] action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest.[178] This development of the parens patriae doctrine "has been explained on the ground that the plaintiff state is not merely advancing the rights of individual injured citizens but has an additional sovereign or quasi-sovereign interest."[179]

The first time the Court noted that a parens patriae action could rest upon a "quasi-sovereign" interest was in Louisiana v. Texas.[180] In that case, the state of Louisiana sought to enjoin a quarantine put in place by Texas state officials, because the quarantine disrupted trade between Texas and the port of New Orleans.[181] The Court recognized Louisiana's interest in the litigation as a parens patriae action, because the issues affected her citizens at large."[182]

In its first application of parens patriae in an environmental context, the Court in Georgia v. Tennessee Copper Co.[183] enjoined Tennessee manufacturing companies from discharging noxious gas over Georgia.[184] In these early cases, the Court allowed a state to sue in its parens patriae capacity, because there was no one else who could effectively bring suit. The Court acted as the arbiter between various quasi-sovereign interests.

Case law makes clear that a state may sue to proctect its citizens against pollution and natural resource damages. This power arose from the common law action for abatement of a public nuisance and forms the basis for a court's recognition of the state's quasi-sovereign standing.[185] Springing from these cases is a series of decisions laying firm groundwork for states to sue in their capacity of parens patriae to enjoin public nuisances.[186] ens patriae, though, extends beyond traditional public nuisance doctrine.[187] As originally applied, a parens patriae action was limited solely to injunctive relief,[188] but courts now allow parens patkae actions for monetary damages as well.[189]

Once the state acts in its parens patriae capacity, it is deemed to represent all of its citizens whenever the state is a party to a suit involving a matter of sovereign interest, and there is a presumption that the state will adequately represent the position of its citizens.[190] Case authority indicates that once a state represents all of its citizens in a parens patriae suit, a consent decree or final judgment entered in such a suit is conclusive upon those citizens and is normally binding upon their rights.[191]

b. Parens Patriae Implications of Alaska Sport Fishing Association

v. Exxon Corporation

One of the fundamental notions giving rise to the development of parens patriae authority is the fear of inadequacies in individual litigation.[192] However, cases such as Alaska Sport Fishing Assn show just how detached from its origins the doctrine has become. Alaska Sport Fishing Assn's class action, and ones similar to it, show the potential for individual plaintiffs to secure adequate representation and proceed on their own behalf.[193] Indeed, no one would seriously argue that ASFA lacked either the will or the ability to maintain its lawsuit. While the Ninth Circuit disallowed ASFA's claim to proceed, other courts bar damage suits by the state in their parens patriae capacity when private actions are available.[194]

Courts generally seek to avoid double recovery by both a state and its citizens for injury to the same interests in the same resources. A state parens patriae suit will seek recovery only for its quasi-sovereign interests in the resource, while private party actions can seek damages for more particularized interests in the resource.[195] However, in Alaska Sport Fishing Assn, despite the availability of viable private action, the court refused to examine the sufficiency of the government's actions under the consent decree. Rather, the Ninth Circuit approach fosters an almost blind allegiance to the sufficiency of government parens patriae action without examining what the government is really doing or whether its actions are even necessary.

In Alaska Sport Fishing Assn, the plaintiffs had a distinct interest in Prince William Sound that was different from that of the general public. ASFA was a correction of people who actively used and enjoyed the resources that were directly damaged by the Exxon Valdez oil spill. The governments, on the other hand, had a more indirect interest in the area. The governments' interest was more that of a general steward as opposed to an active user of the area. In addition, the governments' interest also included the financial stability of Exxon and its own potential liability for the spill. Since they lacked a direct interest, were required to balance Exxon's financial interests, and potentially faced there own liability problems the governments were less-than-ideal plaintiffs. If the court took a hard look at the underlying issues in the case, it would have seen that these two groups had distinct interests and, as such, ASFA's right to use natural resources free from pollution should have been better protected -as well as their right to pursue its own class action.[196]

In addition, with the use of class actions and joinder devices, it is feasible for groups of citizens to adequately represent themselves against a corporate giant such as Exxon.[197] Due to citizens' ability to represent their interests in a clean environment, the fundamental need for a parens patriae action by the state is lessened. The ability of citizens to secure adequate representation permits them to litigate on those matters that directly affect them.

V. CONCLUSION AND CALLS FOR REFORM

The Ninth Circuit decision illustrates the need to take a hard look at the power placed in government hands during natural resource disaster litigation. Congress, however, rather than seeking to control the government's authority in natural resource litigation, has gone in the opposite direction.[198] Although there might be some security in the thought of the government taking care of a natural resource disaster such as an oil spill or hazardous waste release, it also creates some worries concerning the government's ability to adequately protect individual claims and interests.

A better use of parens patriae would have courts closely examine government actions, rather than presume adequate representation exists. Courts should also examine whether the specific interests of the parties are the same,[199] whether private action is a viable alternative to the necessity of governmental action,[200] whether government actions were Med subsequent to the private litigation, and whether the presumption of adequate representation is too broad a grant of authority. If such an approach were adopted, the courts could not only ensure adequate litigation, but also place proper limits on the broad authority of parens patriae actions while preserving individual litigation opportunities.

If the Ninth Circuit had allowed ASFA to recover, it would not have diminished in any way the amount for which the government could have sued; ASFA sought damages that the government, by law, was unable to claim. ASFA was essentially acting like a free market or decentralized steward or trustee for the resource[s]" it utilized.201 By allowing private parties to recover for lost use damages, the policies underlying the CWA, CERCLA, and other statutes202 that seek to promote voluntary, prompt, and effective cleanups of hazardous substance releases would be furthered by ensuring that a steward with an active interest in the area was able to sue. ASFA and other private litigants do not need to balance political pressure from a major employer and have every incentive to obtain full recovery for damages. Granting ASFA a right to recover lost use values mitigated by cleanup would give an added incentive for a party responsible for a spill to prevent the spill in the first place and an added incentive to clean up the spill as quickly as possible.

The original and noble purpose of parens patriae actions was to require the state to act as a protective agent for those who cannot act for themselves. However the doctrine has become more than mere advocacy for dependent citizens; it has evolved into a delicate balance that poses a conflict between the rights of individual litigants and government parens patriae actions. By continuing down this path, the Ninth Circuit has tilted the balance too far in favor of the state at the expense of the patriae. (1) See infra part IV.B.2. (2) Terry Fox, Natural Resource Damages: The New Frontier of Environmental Litigation, 34 S. Tex. L. Rev. 521, 523 (1993) (noting that increased public awareness of natural resource damage has led to more legislation, regulation, and litigation in the area). (3) 34 F.3d 769 (9th Cir. 1994). (4 Id. at 770. (5) Id. at 771-72. (6) In re Exxon Valdez, No. A89-095 CIV., 1993 WL 735037, at (*)4 (D. Alaska July 8, 1993). (7) Section 311(f) of the CWA holds. The President, or the authorized representative of any State, shall act on behalf of the public as trustee of the natural resources to recover for the costs of replacing or restoring such resources. Sums recovered shall be used to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal Government, or the State Government. 33 U.S.C. [sections] 1321(f)(5) (1988). (8) Section 107(f) of CERCLA holds: In the case of an injury to, destruction of, or loss of natural resources ... liability shall be to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State and to any Indian tribe for natural resources belonging to, managed by, controlled by, or appertaining to such tribe, or held in trust for the benefit of such tribe, or belonging to a member of such tribe if such resources are subject to a trust restriction on alienation .... Sums recovered by the United States Government as trustee under this subsection shall be retained by the trustee ... of use only to restore, replace, or acquire the equivalent of such natural resources. Sums recovered by a State as trustee under this subsection shall be available for use only to restore, replace, or acquire the equivalent of such natural resources by the State.... 42 U.S.C. [sections] 9607(f)(1) (1988 & Supp. 1993). (9) Alaska Sport Fishing Assn, 34 F.3d at 774. (10) See infra part IV. (11) Allen v. McCurry, 449 U.S. 90, 94 (1980). For a detailed review of res judicata, see generally 18 Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction [subsections] 4401-4478 (1981). (12) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). (13) See infra part III. (14) See infra part IV.B.1. (15) Alaska Sport Fishing Ass'n, 34 F.3d at 772. (16) See Kevin M. Ward & John W. Duffield, Natural Resource Damages: Law and Economics 584-85, 588 (1992); see infra note 118 (explaining similarities between sport fishers and commercial fishers). (17) Oil Spills: Exxon Ordered by Federal Court Jury to Pay $5 Billion in Punitive Damages, 25 Env't Rep. (BNA) 1029 (Sept. 23, 1994) citing In re Exxon Valdez, No. A89-095 CIV. (D. Alaska Sept. 16, 1994)). This award was upheld on January 27, 1995 by Judge H. Russel Holland of the U.S. District Court for the District of Alaska. Judge Upholds Award in Exxon Valdez Case, 25 Envt Rep. (BNA) 1884 Feb. 3, 1995); see also Charles Wohlforth, Jury Says Exxon Owes $5 Billion Award in Valdez Crude Spill, 2nd-Largest in U.S. History, Newsday (Long Island, N.Y.), Sept 17, 1994, at A3. While commercial fishers were allowed to recover, ASFA was not allowed because the Ninth Circuit has created a limited exception to the Robins Dry Dock Rule for commercial fishers to recover purely economic loss. Carbone v. Ursich, 209 F.2d 178 (9th Cir. 1953) (holding that crew members of a fishing vessel could recover lost profits from another vessel that had negligently fouled their nets); Union Oil v. Oppen, 501 F.2d 558, 570 (9th Cir. 1974) (holding that commercial fishers whose catch was depleted by an oil spill could recover from the oil company in negligence action); In re Glacier Bay, 746 F. Supp. 1379 (D. Alaska 1990) (holding that commercial fishers could recover for economic and business losses sustained as a result of an oil spill off the coast of Alaska). The Robins Dry Dock Rule, as generally applied in maritime law, bars economic recovery without physical harm. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 308-09 (1927). (18) Summary of Injuries to Natural Resources as a Result of the Exxon Valdez Oil Spill, 56 Fed. Reg. 14,687, 14,688 (Apr. 11, 1991); Oil Spills: Valdez Spill Natural Resource Damage Studies Released to Public by Alaska Attorney General, 23 Env't Rep. (BNA) 10 (May 1, 1992); Nina Mink, We're Partying Hearty, Forbes, Oct. 24, 1994, at 84. (19) 56 Fed. Reg. at 14,688. (20) Id.; 140 Cong. Rec. S3793-03 (daily ed. Mar. 24, 1994) (statement of Sen. Frank Murkowski  R-Alaska)). For perspective, US amount of shoreline on the east coast stretches from Cape Cod, Massachusetts to Cape Hatteras, North Carolina or on the west coast from Mendocino, California to San Diego, California. William H. Rodgers, Jr., Environmental Law 17-18 (2d ed. 1994). (21) George J. Church, The Big Spill, Time, Apr. 10, 1989, at 38. The spill has been blamed for killing half the region's sea otter population, devastating sea bird colonies, polluting tidal zones to a depth of 300 feet, and causing heavy losses to populations of bald eagles, harbor seals, fish, killer whales, and shellfish. Enforcement: Exxon Valdez Spill Damage Worse for Animals than Previously Thought, Government Study Says, 21 Env't Rep. (BNA) 2234 (Apr. 12, 1991) [hereinafter Exxon Valdez Spill Damage]. (22) Water Pollution: Alaska Officials Fault Valdez Cleanup Delay; Governor Sees Long-Lasting Political Impacts, 19 Env't Rep. (BNA) 2539 (Mar. 31,1989) ("Prince William Sound is one of Alaska's most productive fisheries and a critical habitat for marine mammals and waterfowl."). (23) The oil spill occurred during the most biologically active time of the year for the southcentral region of Alaska. Not only was the seaward migration of salmon fry starting to take place, as well as major migrations of many bird species, it was also the primary reproductive period for many of the region's bird, mammal, fish, and marine invertebrate species. 56 Fed. Reg. at 14,689. Even though there were no massive fish kills documented at the time of the oil spill, there was a substantial increase in the death rate for salmon eggs. Exxon Valdez Spill Damage, supra note 21, at 2234. (24) Disturbing Numbers, U.S. News & World Rep., May 15, 1989, at 14; see also Janet Raloff, Valdez Spill Leaves Lasting Oil Impacts, Sci. News, Feb. 13, 1993, at 102. (25) 56 Fed. Reg. at 14,690. The total, pre-spill population of sea otters in Prince William Sound was estimated to have been approximately 10,000. Id. at 14,689. (26) The estimates of the number of birds directly killed from the Exxon Valdez off spill ranges from 260,000 to 580,000. Murres, a seabird common to Alaska, appear to have suffered the most significant impacts from the spill, which is estimated to have killed about 300,000 birds. 56 Fed. Reg. at 14,691. The original estimates of between 100,000 to 300,000 birds of all species being killed from the oil spill are generally seen as substantially underestimated, with the most likely death total between 350,000 to 390,000. Oil Spills: Seabird Death Rate From Exxon Valdez Spill Higher Than Originally Estimated, GAO Reports, 22 Env't Rep. (BNA) 1948 (Dec. 6, 1991). The sea bird population is deemed to be particularly vulnerable to the effects of oil spills, because they spend much of their time on the surface of the water foraging. When their feathers come into contact with oil, not only do they lose their buoyancy, causing many birds to drown, but oily feathers often subject them to prolonged exposure that can also lead to death. Id. (27) Janet Raloff, Some Bird Populations Soaring Down, Sci. News, Feb. 20, 1993, at 126. (28) Statement from Interior Secretary Bruce Babbitt on the Fifth Anniversary of the Exxon Valdez Oil Spill on Behalf of the Clinton Administation, 1994 WL 90994 (Dep't of Interior), March 22, 1994 ("Without question, the oil spill was a major ecological disaster for the natural resources of Prince William Sound .... Five years later, many populations of injured species have yet to fully recover.'); See also Rodgers, Supra note 20, at 19; Michael D. Lemonick, Alaska's Billion-Dollar Quandary, Time, Sept. 28, 1992, at 60; Paul A. Witteman, The Stain Will Remain on Alaska: Exxon's $1 Billion Cleanup Cannot Erase the Oil Spill, Time, Sept. 25, 1989, at 58. (29) Janet Raloff, Exxon's Valdez Studies Ignite Controversy, Sci. News, May 8, 1993, at 294; see also Peter Nulty, Too Much Valdez Cleanup?, Fortune, May 6, 1991, at 8 (noting that there is no permanent damage and wildlife is still abundant). (30) Mink, supra note 18, at 86. Exxon allocated $15 million to the federal government for studies to assess environmental damages, $304 million in voluntary payments to fishers and fish processors, $2.1 billion to clean up the oil spill, $1 billion to the state and federal governments to settle civil and criminal claims, $20 million to native Alaskans to settle damage to food harvests, $287 million in compensatory damages to fishers, $5 billion in punitive damages, and $9.6 million to six native corporations and Kodiak Island Borough for damages to land and archeological sites. Id. In addition, Alyeska Pipeline Service Company, the company that operates the Trans-Alaska pipeline and is 2096 Exxon-owned, has spent $32 million to settle state and federal government claims and $98 million to settle claims from fishers, processors, natives, landowners, and others. Id. Still outstanding is a claim in federal court that combines some $300 million in damages to cannery workers, private land owners, municipalities, business owners, and fish hatcheries. Id. There is also a suit that was thrown out of federal court, but is currently on appeal, that claims $200 million in cultural damages to native Alaskans. Id. Exxon is currently appealing the $5 billion punitive damage verdict. Id. (31) Id.; 56 Fed. Reg. at 14,689 n.1 ("Exxon has represented that it has paid over $2.0 billion to conduct cleanup activities during 1989 and 1990."). (32) Karen Pearst, Three Deadly Legacies, Scholastic Update, Apr. 15, 1994, at 6. At times, up to 10,000 workers were involved in the cleanup. See Raloff, supra note 24, at 102. (33) Steve Keeva, After the Spill, A.B.A. J., Feb. 1991, at 66 (civil litigation comprised over 180 separate suits in both state and federal court involving thousands of plaintiffs); Litigation: Alaskans File Amended Complaints; Five Groups Seek Damages From Exxon, 20 Env't Rep. (BNA) 600 July 28, 1989) (the thousands of plaintiffs seeking damages based on property loss, economic loss, disruption and distress, and interference with the use and enjoyment of natural resources include commercial fishers, processors and distributors of seafood, area businesses, Alaskan natives, and individuals that used the area for sport and recreational purposes). As a result of the spill, by November 1989 there were 99 (including 25 class actions) damage suits in Alaska state court against Exxon and others, 46 (including 34 class actions) damage suits in Alaska federal court against Exxon and others, six (four in Alaska and two in New York) shareholder suits against Exxon management, one California motorists' class action suit against Exxon, and 12 small claims actions Med against Exxon. Barnaby J. Feder, Alaskan Oil Spill Touched Off Gusher of Lawsuits, Charlotte Observer, Nov. 26, 1989, at 6C; see generally Water Pollution: Lawsuits Allege Billiins in Damages from Exxon Oil Spill, Cleanup in Alaska, 19 Env't Rep. (BNA) 2588 (Apr. 14, 1989) (description of several class actions seeking compensation for damages that resulted from the oil spill). (34) One of the first suits filed after the oil spill was a class action comprised of over 500 members, including a group of seafood processors, commercial fishers, a tour boat operator, a fish broker, and a freight forwarder. Water Pollution. Alaska Governor Eyes Contingency Plan; First Lawsuits Filed Over Effects of Spill, 19 Env't Rep. (BNA) 2566 (Apr. 7, 1989); Exxon Valdez Trial Starts, Nat'l L.J., May 16, 1994, at 1. (35) Litigation: Exxon Responds to Alaska Oil Spill Suit, Asserts that State Was Also Liable Party, 20 Env't Rep. (BNA) 1139 (Nov. 3, 1989); New Pact in Valdez Oil Spill Case, Plaintiffs Agree to Drop Suits Against Alaska, Unify Against Exxon, S.F. Chron., Sept. 23, 1991, at A6. (36) In re Exxon Valdez, No. A89-095 CIV., 1994 WL 182856 (D. Alaska Mar. 23, 1994) (Native Americans sought damages for harm to cultural sites). (37) One such suit is Benefiel v. Exxon Corp., in which the Ninth Circuit upheld the dismissal, for failure to state a claim, of plaintiffs attempt to recover damages for the increase in gasoline prices they were required to pay as a result of the spill. 959 F.2d 805, 808 (9th Cir. 1992). (38) Alyeska (which is 20% Exxon-owned and controlled by the seven major oil companies in Alaska) was also sued as a result of the Exxon Valdez spill. Mink, supra note 18, at 86. Alyeska entered into a settlement agreement with the various plaintiffs, which Exxon opposed, and agreed to pay them $98 million to settle all claims. In re Exxon Valdez, A89-0095-CV, 1993 WL 649104, at 1 (D. Alaska Dec. 8, 1993) (Motion for Confirmation Bar Order). (39) Trans-Alaska Pipeline Authorization Act, 43 U.S.C. [sections] 1653(c) (1988 & Supp. V 1993). Approximately 29,000 claims were filed under TAPAA, which holds that the owner and operator of a vessel are strictly liable for government response costs, natural resource damages, and any economic damages or losses sustained by any person or entity that results from an oil spill in the region up to $14 million. Id. The Trans-Alaskan Pipeline Liability Fund established by the Act is also liable for that $14 million plus any remainder up to $100 million. Id. [sections] 1653(c)(3). The Fund denied approximately 28,400 claims, and, of those, approximately 2,000 appealed to district court, which consolidated them and subsequently dismissed the majority of them. Those dismissed are currently on appeal before the Ninth Circuit in O'Francia v. Trans-Alaska Pipeline. Liability Fund, Nos. 94-35219, 94-35224, 94-35226, 94-35225, 94-35244, 1995 WL 138573 9th Cir.) Claimants/Appellants' Brief). (40) Plaintiffs-Appellants' Brief at 4, Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769 (9th Cir. 1994) (No. 93-35852). Exxon set up this claims facility to provide a remedy for individuals that would not involve going to court. Id. (41) Alaska Sport Fishing Assn, 34 F.3d at 771-72. The sport fishers' claims were eventually joined with those of several environmental groups who were also seeking lost use damages or environmental relief. Id. at 771. (42) Id.; see also Alaska Stat. [sections] 46.03.822 (1994); see generally [subsections] 46.03.010-.900, 46.08.005-.900 (1994) (full sections of Alaska state statutes ASFA used to sue under). An interesting question is whether, absent the consent decree, ASFA would have been able to maintain their claims of negligence and nuisance. See infra text accompanying note 58. Absent the Alaska state statute that imposed strict liability for the release of hazardous substances, it would have been difficult for ASFA to proceed with solely public" nuisance and negligence claims. A public nuisance is 'an unreasonable interference with a right common to the general public." Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 315 (3d Cir. 1985), cert. denied, 474 U.S. 980 (1985) (referring to Restatement (Second) of Torts [sections] 821B(1) (1959)). Traditionally, these public nuisance claims can only be brought by the state. Id. A private nuisance on the other hand is narrowly restricted to the invasion of use and enjoyment of a individual's rights in their land. Id. In order for individuals to recover for a public nuisance, they must have suffered a harm of a kind different than that suffered by other members of the public exercising the right common to the general public that was the subject of interference. Id. (referring to RESTATEMENT (SECOND) OF Torts [section] 821C(1)); see also Louisiana v. MN Testbank, 752 F.2d 1019, 1030 (5th Cir. 1985), cert. denied, 477 U.S. 903 (1986) (applying the rule from Robins Dry Dock and holding that physical damage to a proprietary interest is a prerequisite to recovery for an economic loss that resulted from a chemical spill in a Mississippi River Gulf outlet). Negligence, on the other hand, refers to a breach of a duty or obligation, recognized by law, that requires a person to follow a standard of conduct for the protection of others against an unreasonable risk. W. Page Keeton et al., Prossser and Keeton on The Law of Torts [section] 30, at 164 (5th ed. 1984). Generally, to maintain a negligence action the plaintiff must suffer actual loss or damage. Id. at 165. While the courts most likely would not have allowed ASFA to claim a particularized harm to sustain a public nuisance, ASFA would likely have been able to proceed with the Alaska state statutory claim which granted them a right to sue. See Alaska Stat. [section] 46.03.822 (1994); see generally [subsections] 46.03.010-.900, 46.08.005-.900 (1994). The negligence claim is a little more difficult because, while at first there does not appear to be a breach of a duty or actual damages to ASFA to support a negligence claim, a federal jury did find that Exxon acted negligently with regard to the commercial fishers. See supra note 17 and accompanying text. (43) Alaska Spoil Fishing Assn, 34 F.3d at 771. (44) Id. (45) Id. at 774. (46) 33 U.S.C. [section] 1321(f)(5) (1988). For the text of the statute, see supra note 7. (47) 42 U.S.C. [section] 9607(f)(1) (1988 & Supp. V 1993). For the text of the statute, see supra note 8. (48) Alaska Sport Fishing Assn, 34 F.3d at 771. (49) Settlement Agreement Concerning the Exxon Valdez Oil Spill Between the United States, the State of Alaska and the Exxon Corp., Exxon Shipping Co., and Exxon Pipeline Co., 56 Fed. Reg. 11,636 (Mar. 19, 1991) [hereinafter Consent Decree]. (50) Defendants-Appellees' Brief at 5, Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769 (9th Cir. 1994) (No. 93-35852). (51) Telephone Interview with Geoffrey Parker, Richard A. Jameson & Assoc., Attorney for Alaska Sport Fishing Ass'n (Oct. 1994). (52) Id. (53) Defendants-Appellees' Brief at 5, Alaska Sport Fishing Ass'n (No. 93-35852). (54) Id. (55) Consent Decree, supra note 49, at 11,638-39. (56) Id. at 11,637. (57) Id. (58) Id. at 11,641. Both the CWA, 33 U.S.C. [subsection] 1321(o), 1365(e) (1988), and CERCLA, 42 U.S.C. [section] 9611(a) (1988), clearly state that remedies under other statutes or common law are preserved. Thus, citizens may sue polluters on their own behalf and on the public's behalf for environmental restoration or other natural resource damages under state statutes and under common law doctrines such as negligence and nuisance. (59) In re Exxon Valdez, No. A89-095 CIV., 1993 WL 735037, at(*)1 (D. Alaska July 8, 1993) (Motions to Dismiss Amended Complaint). (60) Id. at 4. (61) In re Exxon Valdez, No. A89-095 CIV., 1994 WL 182856 (D. Alaska Mar. 23, 1994) (Exxon's Motion for Summary Judgment on Native Class Claims for Noneconomic Injury). Exxon sought summary judgment on Alaska Native class claims for noneconomic injury and claims seeking compensatory damages for economics loss. Id. The court partially denied and partially granted the motion. Id. The court dismissed claims that did not result in contamination of fisheries that commercial fishers used, but denied Exxon's motion with regard to commercial fishers whose fisheries were contaminated. Id. (62) Alaska Sport Fishing Ass'n v. Alyeska Pipeline Serv. Co., Class Action Complaint [paragraph] 1, Civ. No. 3AN-89-5188 (Alaska Super. Ct. filed June 21, 1989), cited in Brief for Defendant-Appellees at 4, Alaska Sport Fishing Assn (No. 93-35852). The plaintiff intended the relief to provide for an environmental mitigation and monitoring fund. Id. (63) Telephone Interview with Geoffrey Parker, Richard A. Jameson & Assoc., attorney for Alaska Sport Fishing Ass'n (Mar. 1995). (64) Alaska Sport Fishing Ass'n v. Alyeska Pipeline Serv. Co., Class Action Complaint 11, Civ. No. 3AN-89-5188 (Alaska Super. Ct. filed June 21, 1989), cited in Alaska Sport Fishing Ass'n, 34 F.3d at 771. (65) National Wildlife Fed'n v. Exxon Corp., Civ. No. 3AN89-6957 (Alaska Super. Ct. filed Aug. 17, 1989), cited in Alaska Sport Fishing Ass'n, 34 F.3d at 771. (66) Eyak Native Village v. Exxon Corp., 25 F.3d 773, 775 (9th Cir. 1994), cert. denied, 115 S. Ct. 351, reh'g denied, 115 S. Ct. 627 (1994), cert. denied, 115 S. Ct. 778, 115 S. Ct. 779 (1995). (67) Telephone Interview with Geoffrey Parker, supra note 51. (68) Eyak Native Village, 25 F.3d at 776. (69) Brief for Plaintiff-Appellants at 5, Alaska Sport Fishing Ass'n (No. 93-35852). (70) Eyak Native Village, 25 F.3d at 776. (71) See In re Exxon Valdez, No. A89-095 CIV., 1993 WL 735037, at *1 (D. Alaska July 8, 1993) (Motions to Dismiss P-139, P-143, P-299, P-300, and P-301's Amended Complaint). (72) The relevant portion of FRCP 60(b) is as follows: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . . Fed. R. Civ. P. 60(b). (73) Eyak Native Village, 25 F.3d at 777. (74) Alaska Sport Fishing Ass'n, 34 F.3d at 771. (75) Id. (providing ASFA the opportunity to amend its complaint but denying the opportunity to environmental groups). (76) Id. (77) They alleged that they used the resources for sport fishing, boating, kayaking, wildlife viewing, camping, beachcoming, hiking along the shoreline, hunting, trapping, crabbing, education of children, and other uses of the area, and that the spill had injured their uses. Brief for Plaintiff-Appellants at 7 n.7, Alaska Sport Fishing Ass'n (No. 93-35852). (78) Id. at 7. (79) Id. at 8 (citing 43 C.F.R. [sections] 11.84(c)(2) (1994) (regulations governing how the government can assess damages for recovery after an oil spill)). (80) Brief for Plaintiff-Appellants at 8, Alaska Sport Fishing Ass'n (No. 93-35852). (81) In re Exxon Valdez, No. A89-095 CIV., 1993 WL 735036 (D. Alaska Aug. 6, 1993) (Motion for Reconsideration). (82) In re Exxon Valdez, No. A89-095 CIV., 1993 WL 735037 at *2 (D. Alaska July 8, 1993) (Motions to Dismiss Amended Complaint). (83) Id. at *2. (84) Id. at *4. (85) Alaska Sport Fishing Ass'n, 34 F.3d at 772. (86) Id. at 773-74. (87) Id. at 773. (88) "In order for a judgment in a prior suit to create a res judicata bar of a subsequent suit, the second suit must involve the `same parties or their privies based on the same cause of action."' Id. at 773 (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)). (89) Id. at 772. (90) Id. it 773-74. (91) Id. at 773. (92) Id. (93) The term res judicata is sometimes used inconsistently by the courts. In its broadest sense, the term res judicata has been used to refer to two distinct doctrines also referred to as claim preclusion and issue preclusion. Wright et al., supra note 11, [sections] 4402, at 6 (1981). The term res judicata as used here, and in a way often referred to as its proper use, refers to the doctrine of claim preclusion and not issue preclusion or collateral estoppel. See Ross v. International Bhd. of Elec. Workers, 634 F.2d 453, 457 n.6 (9th Cir. 1980). (94) Wright et al, supra note 11, [sections] 4403, at 11. (95) Id., [sections] 4403, at 19. (96) Jack H. Friedential et al., Civil Procedure 614-15 (2d ed. 1993). (97) Id. (98) United States v. Throckmorton, 98 U.S. 61, 65 (1878). The Supreme Court noted that the basic purpose behind res judicata is to protect "litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). (99) Alaska Sport Fishing Ass'n, 34 F.3d at 772. (100) See Allen v. McCurry, 449 U.S. 90, 94 (1980) (requiring identical claims for res judicata); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) (holding that a final consent decree is entitled to res judicata effect). Here, the issue is whether the claims were identical between the parties. (101) Brief for Defendant-Appellees at 10, Alaska Sport Fishing Ass'n (No. 93-35852) (emphasis added). (102) Id. at 10-11. (103) Id. at 14. (104) Alaska Sport Fishing Ass'n, 34 F.3d at 773; see Plaintiff-Appellants' Brief at 23, Alaska Sport Fishing Ass'n (No. 93-35852). (105) The public trust doctrine generally provides that certain property and natural resources are held by the government for the benefit of the public. Ward & Duffield, supra note 16, at 11. This public trust doctrine creates an affirmative duty on behalf of government to enforce that trust. Id. Unless a private party has a specific interest in the resource held in "trust," it is questionable whether anyone but the state could be the proper party to a suit for damages to natural resources. Id. (106) 42 U.S.C. [sections] 9607(f)(2)(A) (1988 & Supp. V 1993). (107) Id. [sections] 9607(f)(1). (108) Defendant-Appellee's Brief at 18, Alaska Sport Fishing Ass'n (No. 93-35852). In support of its position, Exxon also pointed to the legislative history of CERCLA that noted that trustees could seek a "total amount of damages [that] may include . . . the value of all the lost uses of the damaged resources . . . from the time of the release up to the time of restoration." H.R. REP. No. 253, 99th Cong., 1st Sess., pt. 4, at 50 (1985). Id. at 19. (109) Alaska Sport Fishing Ass'n, 34 F.3d at 772, 774. (110) Id. at 772. (111) Id. at 774. (112) The Ninth Circuit framed ASFA's argument as follows:

Plaintiffs contend . . . trustees can recover only for "residual" resource injury, and thus cannot recover damages for public loss of use and enjoyment that occurs prior to "recovery" or cleanup. They argue that because government trustees are unauthorized to recover for pre-cleanup, lost-use damages, they should be allowed, as members of the sport-fishing public, to recover such damages. Id. at 772. (113) Telephone Interview with Geoffrey Parker, supra note 51. (114) 33 U.S.C. [sections] 1321(f)(4) (1988). (115) Id. [sections] 1321(f)(5). The designation of a trustee on behalf of the public normally translates to a broad authority to represent the public. A trustee generally has authority to act on behalf of beneficiaries to protect and maintain trust property. See George G. Bogert, The Law of Trusts and Trustees [sections] 594 (rev. 2d ed. 1980); see also Restatement (Second) of Trusts [sections] 280 (1959). (116) Alaska Sport Fishing Ass'n, 34 F.3d at 771. (117) See Natural Resource Damage Assessments, 43 C.F.R. [subsections] 11.10, 11.15(a)(1)(ii), 11.84(c)(2) (1994); see also id. [subsections] 11.14(ii), 11.14(11) (1994) (defining "replacement" and "restoration" as actions "in addition" to response actions). (118) Brief for Plaintiff-Appellants at 16, Alaska Sport Fishing Ass'n (No. 93-35852) (emphasis added). (119) 33 U.S.C. [sections] 1321(f)(1) (1988). (120) Id. [sections] 1321(f)(4). (121) Natural Resource Damage Assessments, 43 C.F.R. [subsections] 11.10-.93 (1994). (122) 42 U.S.C. [sections] 9651(c)(1) (1988). (123) 33 U.S.C. [sections] 1321(f)(4)-(5) (1988). (124) See 43 C.F.R. [subsections] 11.10, 11.15(a), 11.84(c); see supra notes 110-11 and accompanying text. (125) Brief for Plaintiff-Appellants at 14, Alaska Sport Fishing Ass'n (No. 93-35852) (citing 43 C.F.R. [sections] 11.14(u) (1994)). (126) 43 C.F.R. [sections] 11.10 (emphasis added). (127) Natural Resource Damage Assessment, 51 Fed. Reg. 27,674, 27,679 (Aug. 1, 1986) ("[T]his phase requires ascertaining the baseline level of services provided by the resource prior to the discharge or release. The baseline level of services is then compared to the existing level of services or the anticipated level of services upon completion of any response action to determine the residual change resulting from the discharge or release."). (128) See 43 C.F.R. [sections] 11.84(c). The text of the regulation is:

(c) Double Counting. (1) Double counting of damages should be avoided. Double counting means that a benefit or cost has been counted more than once in the damage assessment. (2) Natural resource damages are the residual to be determined by incorporating the effects, or anticipated effects, of any response actions. To avoid one aspect of double counting, the effects of response actions shall be factored into the analysis of damages. If response actions will not be completed until after the assessment has been initiated, the anticipated effects of such actions should be included in the assessment. Id. (emphasis added). (129) Id. [sections] 11.15(a) (emphasis added). (130) Ohio v. Department of Interior, 880 F.2d 432, 464 (D.C. Cir. 1989). (131) Brief for Plaintiff-Appellants at 15, Alaska Sport Fishing Ass'n (No. 93-35852). The court was correct in noting in its opinion that CERCLA does require "use value" to be a "factor" considered in the regulations. Alaska Sport Fishing Ass'n, 34 F.3d at 772. The "diminution of use value" is only for measuring damages for restoration and replacement costs. However, this applies only to residual resource injury left unaddressed or unmitigated by clean up. See 43 C.F.R. [subsections] 11.81(b), 11.84(g). (132) The figure is based on Ward & Duffield, supra note 16, at 137, and Telephone Interviews with Geoffrey Parker, supra notes 51 and 63. (133) The baseline represents the conditions that existed before the spill. (134) See Brief for Plaintiff-Appellants at 15-22, Alaska Sport Fishing Ass'n (No. 93-35852). (135) See 43 C.F.R. [subsections] 11.81(b), 11.83, 11.84(g). (136) Ward & Duffield, supra note 16, at 584-85, 588. In addition to the lost ability to utilize the resource prior to cleanup, the loss of recreational use can also be referred to as an economic lost value. "Sport fishing is an economic activity that is very similar in nature to commercial fishing. The primary difference is that the `product' for the sport angler is the catch plus the experience, rather than just the catch." Id. at 584. In addition, both the sport fisher and the commercial fisher incur costs in equipment, travel, and hired guides, as well as share the direct in situ contact with the marine environment. Id. (137) See Alaska Sport Fishing Ass'n, 34 F.3d at 772, 774. In their reply brief to the Ninth Circuit, ASFA cited a case that proceeded along similar lines as support. In re Oriental Republic Uruguay, an admiralty court allowed an association of recreational swimmers to claim "lost use" damages that resulted when a tanker spilled oil, even though the United States government had already claimed cleanup, restoration, and replacement costs under the CWA. In re Oriental Republic Uruguay, No. A90404 CIV., 1993 WL 153154, at *1 (D. Del. Apr. 7, 1993), cited in Brief for Plaintiff-Appellants at 6-7, Alaska Sport Fishing Ass'n (No. 93-35852). The court held that the swimmers were not barred because their "lost use claim is not properly characterized as a claim for "natural resource damages."' Id. (138) Brief for Plaintiff-Appellants at 20, Alaska Sport fishing Ass'n (No. 93-35852). The state of Alaska placed the value at $31 million and ASFA placed the value between $19 and $43 million. Telephone Interview with Geoffrey Parker, supra note 51. The "value" of lost use natural resource damages suffered in the Exxon Valdez spill is usually calculated based on the travel cost method or contingent valuation. Ward & Duffield, supra note 16, at 588-601. The travel cost method is used to measure the average willingness of a person to pay per day for sport fishing. Id. at 590. This figure is then multiplied by the number of sport fishers estimated to regularly visit the affected area prior to the oil spill verses those who still visited. Id. at 590-91. Contingent valuation is a process in which the value of the resource free from an oil spill, to a person, is surveyed. This figure is then multiplied based on population. The question asked is: "What is the worth to you to know that Prince William Sound is free from oil?" This result is a "value" of the resource free from spoilage. Telephone Interview with Geoffrey Parker, supra note 51; see generally Ward & Duffield, supra note 16. (139) Brief for Plaintiff-Appellants at 20, Alaska Sport Fishing Ass'n (No. 93-35852). (140) Alaska Sport Fishing Ass'n, 34 F.3d at 772. (141) Id. at 774 (quoting Consent Decree, supra note 49, at 11,639). (142) Id. at 772. (143) Id. at 771. Even though the compensation sought by ASFA could not be used to recover their lost use," they argued that there were still damages suffered that the government could not recover for and, thus, that they should be able to recover for them. These funds were to be used to provide a trust fund to protect and purchase resources for public use. Telephone Interviews with Geoffrey Parker, supra notes 51 and 63. (144) Alaska Sport Fishing Assn, 34 F.3d at 772. (145) Id. at 773. (146) Ward & Duffield, supra note 16, at 21. (147) Jack H. Friedenthal Et Al., Civil Procedure 682 (1985); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 note 5 (1979). (148) Friedenum Et Al., supra note 147, at 683. One of the most recognized privity relationships involves legally-appointed representative parties, such as trustees appointed by statute or courts. Id. at 684. (149) Alaska Sport Fishing Assn, 34 F.3d at 773. (150) Id. (151) Id. (citing Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979)); see also Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600-01 (1982) (holding that Commonwealth of Puerto Rico had a quasi-sovereign interest in preventing discrimination against Puerto Rican imigrant farm workers); United States v. Olin Corp., 606 F. Supp. 1301, 1305 (N.D. Ala. 1985) (holding that state had a quasi-sovereign interest in preventing pollution); Maine v. M/V Tamano, 357 F. Supp. 1097, 1099-1 100 (D. Me. 1973) (holding that state had a quasi-sovereign interest in recovering damages that resulted from an off spill in state waters). (152) Alaska Sport Fishing Assn, 34 F.3d at 773. (153) See Church, supra note 21, at 38 (arguing that the State of Alaska faced potential liability as a result of its failure to adequately prevent and then take care of the oil spill). (154) See Exxon Valdez Trial Starts, supra note 34, at A6. The State of Alaska faced plaintiffs on two fronts. Many plaintiffs Med suits against the State of Alaska claiming that state officials negligence helped to cause the spill. Exxon also Med a claim against the State of Alaska arguing it was liable for damages because it blocked Exxon's plan to use chemical dispersants to break-up the oil slick. Id. (155) Id. (156) Julia Lieblich, Exxon Befouled, Fortune, Apr. 24, 1989, at 16 noting that Alaska's oil industry employs 9,000 people and pumps $7 billion annually into the state's economy). (157) Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972); Natural Resources Defense Council v. Costle, 561 F.2d 904, 911 (D.C. Cir. 1977); Environmental Defense Fund v. Higginson, 631 F.2d 738, 740 D.C. Cir. 1979). (158) New Jersey v. New York, 345 U.S. 369, 373 (1953). (159) Louisiana v. Texas, 176 U.S. 1, 19 (1900). (160) Higginson, 631 F.2d at 740, (161) United States v. Olin Corp., 606 F. Supp. 1301, 1307 (N.D. Ala. 1985). (162) Id. at 1305 (finding that a state often represents varied interests). (163) Allen v. McCurry, 449 U.S. 90, 94 (1980). (164) George Curtis, The Cheekered Career of Parens Patriae: The State as Parent or Tyrant?, 25 Depaul L. Rev. 895, 896 (1976). (165) In the ASFA litigation, the conservation trust plaintiffs filed suit before the governments initiated any actions. It was only after the government entered a consent decree that the previous claims were precluded. Alaska Sport Fishing Assn, 34 F.3d at 771. (166) Curtis, supra note 164, at 896 (citing 1 William Blackstone, Commentaries *239-40). (167) Id. at 896-98. (168) Amelia C. Waller, State Standing in Police-Misconduct Cases: Expanding the Boundaries of Parens Patriae, 16 GA. L. Rev. 865, 875 (1982). (169) Curtis, supra note 164, at 897 citing Falkdand v. Bertie, 23 Eng. Rep. 814 (Ch. 1696)). (170) Id. at 914. (171) Mormon Church v. United States, 136 U.S. 1, 57 (1890). (172) Curtis, supra note 164, at 907-08. (173) 17 Charles A. Wright Et Al., Federal Practice and Procedure ss 4047 (2d ed.1988). (174) Curtis, supra note 164, at 908-09. (175) The definition of a "quasi-sovereign" interest is normally settled on a case-by-case basis. See Wrigerr Et Al., supra note 173, ss 4047. A state maintains an independent interest in coastal waters and other natural resources. Toomer v. Witsell, 334 U.S. 385, 408 (1948) Frankfurter, J., concurring). (176) Alfred L. Snapp & Sons v. Puerto Rico ex rel. Barez, 458 U.S. 592, 602 (1982). (177) Jeffrey Baddeley, Note, Parens Patriae Suits by a State Under 42 U.S.C ss 1983, 33 Case W. Res. L. Rev. 431, 446 (1983). (178) Alfred L. Snapp & Sons, 458 U.S. at 607. (179) Wright Et Al., supra note 173, ss 4047. (180) Louisinia v. Texas, 176 U.S. 1, 19 (1900). (181) Id. at 4-5. (182) Id. at 19. (183) Georgia v. Tennessee Copper Co., 237 U.S. 474 (1915). (184) Id. at 478. (185) See Ohio v. Wyandotte Chem. Corp., 401 U.S. 493, 505-06 (1971) (Douglas, J., dissenting); In re Debs, 158 U.S. 564, 584 (1895). (186) North Dakota v. Minnesota, 263 U.S. 365, 388 (1923) (holding that discharging surface water into a stream to the detriment of lower owners may be enjoined); Wyoming v. Colorado, 259 U.S. 419, 496 (1922) (upholding injunction to prevent diversion of interstate waters); New York v. New Jersey, 256 U.S. 296, 314 (1921) (enjoining discharge of sewage into New York harbor); Kansas v. Colorado, 206 U.S. 46, 676 (1907) (restraining diversion of water from an interstate stream); Georgia v. Tennessee Copper Co., 206 U.S. 230, 240 (1907) enjoining discharge of noxious fumes by copper company across state boundary); Missouri v. Illinois & Chicago Dist., 180 U.S. 208, 248 1601) enjoining discharge of sewage into the Mississippi River). (187) Pennsylvaniav. West Virginia, 262 U.S. 553,600 (1923), affd, 263 U.S. 350 (1923) (holding that Pennsylvania was a proper party to represent the interests of its residents in maintaining access to natural gas produced in West Virginia). (188) Curtis, supra note 164, at 913 ("The hallmark of the quasi-sovereign suit has been the injunction to stop injury to the totality of the state's commonwealth."). (189) See State of Maine v. Tamano, 357 F. Supp. 1097, 1102 (D. Me. 1973) first case to explicitly allow monetary recovery for natural resource damages caused by an oil spin off the coast of Maine). (190) United States v. Olin Corp., 606 F. Supp. 1301, 1305 (N.D. Al& 1985). (191) Id. at 1304. (192) WRIGHT el AL, supra note 173, ss 4047; see Missouri v. Illinois & Chicago Dist., 180 U.S. 208, 241 (1901) (noting that individual suits for personal injuries "would be wholly inadequate and disproportionate remedies"). The prime concern was that more sweeping remedies would be available to a plaintiff state than through individual actions. See Georgia v. Tennessee Copper Co., 237 U.S. 474, 476 (1915). (193) Note, State Protection of its Economy and Environment: Parens Patriae Suits for Damages, 6 Colum. J.L. & Soc. Probs. 411, 423-24 (1970) [hereinafter State Protection] ("[A]lthough the state has the responsibility of protecting the environment within its territory, the citizens can bring a class action for injury to that environment on the theory-that they are the equitable owners of the environmnent .... The class action has developed as a means of protecting individuals' interests through mass representation."). (194) Hawaii v. Standard Oil Co., 405 U.S. 251, 263-64 (1972) (denying parens pathae standing under the private treble damage provision of the applicable antitrust laws because a private cause of action was available through a class action); Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993) (holding that a CERCLA consent decree for natural resource damages had no res judicata effect on private claims at issue); State of California v. Frito-Lay, Inc., 474 F.2d 774, 775 (9th Cir.), cert. denied, 412 U.S. 908 (1973) ("Parens patriae has received no judicial recognition in this country as a basis for recovery of money damages for injuries suffered by individuals."); see also United States v. Texas E. Transmission Corp., 923 F.2d 410, 416 (5th Cir. 1991) (holding that Pennsylvania could not be bound by EPA action under CERCLA because it was not a party to the consent decree.); Atlantic States Legal Found., Inc. v. Koch Refining Co., 681 F. Supp. 609, 615 (D. Minn. 1988) (holding the court had no discretion to dismiss a properly filed citizen suit when a government enforcement action was later brought covering the same claims); Sierra Club v. Coca-Cola Corp., 673 F. Supp. 1555, 1563 (M.D. FI& 1987) (holding that a consent decree entered into by EPA and dismissal not required of the Sierra Club action for the same CWA violation). But see Satsky v. Paramount Communications Inc., 7 F.3d 1464, 1468-70 (10th Cir. 1993) (holding that the government can bind previous litigants parties via a subsequent consent decree); EPA v. City of Green Forest, Ark., 921 F.2d 1394, 1403-04 (8th Cir. 1990), ceyt. denied, 502 U.S. 956 (1991) (holding that citizens had leave to intervene in EPA's action); see also United States v. Olin Corp., 606 F. Supp. 1301, 1305 (N.D. Ala. 1985) relied on by Green Forest); cf. United States v. Akzo Coatings of Am, Inc., 949 F.2d 1409, 1454 (6th Cir. 1991) (holding CERCLA consent decree obtained by EPA precluded the State of Michigan from obtaining additional relief under state law). (195) Ward & Duffield, supra note 16, at 22. (196) Even if the claims were identical, the differences in adequacy of representation and the fact that the two parties may pursue their claims differently suggests that the courts need to focus more attention on the levels of particularized interest in an effort to achieve the best possible representatives. (197) See State Protection, supra note 193; see also Richard L. Marcus & Edward F. Sherman, Complexion Litigation: Cases and Materials on Advanced Civil Procedure 2-6, 273 (2d. ed. 1992) (noting that the changes in procedural rules resulted in the courts being a significant avenue for social change and that class actions have become a "new opportunity for legal redress"). (198) The Oil Pollution Act of 1990 made the lost use of natural resources a government claim. Damages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.' 33 U.S.C. ss 2702(b)(2)(a) (Supp. V 1993). (199) See Environmental Defense Fund v. Higginson, 631 F.2d 738, 74041 (D.C. Cir. 1979) MacKinnon, J., dissenting). (200) It was the inadequacy of individual litigation that gave rise to parens patriae actions generaly and for environmental harms specifically. See supra part IV.B.1. (201) Ward & Duffield, supra note 16, at 587. (202) E.g., Alaska Stat. ss 46.03.822 (1994) (providing an example of a state statute involving hazardous waste releases and natural resource disasters).