The state of Alaska is suing a Bethel-based business over a barge that the state says has been left to rust since it sank in a Southwest Alaska slough more than four years ago.
The case against Faulkner Walsh Constructors marks the first time the Alaska Department of Natural Resources has pursued a civil suit over an abandoned or derelict vessel obstructing navigable waters, said DNR natural resources manager Jusdi McDonald.
"We issued a trespass notice on this particular vessel, and we made multiple attempts to work with Faulkner Walsh Constructors to bring them into compliance," McDonald said. "When that didn't happen, the next step was to take this action with the Department of Law."
Named in the civil complaint as defendants are Faulkner Walsh, H2W Constructors Inc. and Foundation Services Inc. Prosecutors argue each of the entities is the "alter-ego, co-conspirator and/or agent" of the others.
The trespass notice was issued on Oct. 4, 2012, when the barge Delta Chief sank in shallow waters of the Kuskokuak Slough near Bethel. It has disrupted travel through the slough since, according to the complaint.
[Abandoned vessels litter Alaska's shorelines while officials work on a fix]
The Delta Chief was carrying a huge payload of gravel, vehicles and other heavy equipment when it sank, said assistant attorney general Peter Caltagirone.
There is no straightforward mention of pollution due to the sinking in the court document, other than the state arguing the barge is causing "natural resource damages."
"All the concerns (about the barge) have been laid out in the complaint," Caltagirone said.
An Alaska Department of Environmental Conservation situation report released a day after the barge sank says potential contaminants included diesel fuel, lubricating oil and hydraulic fluid. Initial reports indicated that there was a minor sheen in the area, but the total amount of spilled fluids was unknown, the report says.
Faulkner Walsh had not responded to the complaint as of Wednesday. A company representative could not be reached for comment for this story.
In response to demands from the state, Faulkner Walsh submitted a plan for the removal of the Delta Chief in early March of 2013, according to the complaint. Three days later, the chief financial officer of the business told state officials the barge would be removed by spring 2013, after breakup, the complaint says.
With the assurance the barge would be gone, the Department of Natural Resources gave Faulkner Walsh a land-use permit to carry out the removal.
The business' project manager reassured a DNR employee about a month after the permit was issued that the Delta Chief would be removed, the complaint says.
But the removal never happened, prosecutors said, and Faulkner Walsh employees stopped communicating with officials. The barge has been left to rust for more than four years, they said.
The lawsuit is the last step in a DNR process established for castoff watercraft.
Under state regulations, anchoring a vessel for fewer than two weeks is generally allowed, McDonald said. Anything anchored for longer than 14 days requires authorization from her department, she said.
To address out-of-compliance vessels, officials determine if they're on state land, issue trespass notices and work with owners and operators toward removal, McDonald said.
There has been criminal action taken for situations like this before, albeit rarely, Caltagirone said.
"I don't necessarily have an opinion as to any criminal liability here one way or the other," said Caltagirone, the state attorney on the Faulkner Walsh case. "I looked at it and identified various causes of action under a civil liability theory that we're pursuing for DNR."
The state is suing Faulkner Walsh for damages in an amount to be proven at trial, the complaint says. It argues the business' negligent and intentional trespass on state lands is causing a public nuisance and damaging natural resources.
Faulkner Walsh is a repeat offender, McDonald said, and officials issued the business 13 notices of trespass in 2013 — with each notice representing a vessel. None of the vessels have been removed, she said.
Caltagirone declined to comment when asked if the state was considering additional civil action against Faulkner Walsh.
There are about 160 abandoned or derelict vessels statewide, McDonald said. That number is continuing to increase, and so are the number of reports about the vessels that the department receives, she said.