UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
IN RE: OIL SPILL BY THE OIL RIG
“DEEPWATER HORIZON” IN THE
GULF OF MEXICO ON APRIL 20, 2010
MDL No.: 2179
Section “J”
Judge Barbier
This Document Relates to:
2:12-cv-02048-CJB-SS
2:12-cv-02155-CJB-SS
2:12-cv-00988-CJB-SS
2:12-cv-01295-CJB-SS
2:12-cv-0038-CJB-SS
2:12-cv-01483
2:12-cv-01484 SD FL 4:12-cv-10070
2:12-cv-01485 and
Unfiled Economic and Property Damages
Class Members
Unfiled Medical Benefits Class Members
Magistrate Judge Shushan
DECLARATION OF EDWIN W. CAKE, JR., PH.D.
I, Edwin W. Cake, Jr., am over twenty-one years old and of sound mind and body. My
declaration is based on personal knowledge, and if called to testify I could testify to the matters
set forth in this declaration.
1. I have been involved with the Louisiana Oyster Industry and many oyster fishermen since
long before the BP oil spill began in April 2010. I have been paid by the law firm of
Faegre, Baker& Daniels, LLP, to assist them in determining the probable damage to their
oyster clients' bedding leases in Louisiana and Alabama. I have also supplied that firm
and others, including the public, with news reports on the continuing impacts of the BP
oil spill in the central Gulf of Mexico. My curriculum vitae is attached hereto. As a result
of my consulting activities and my analysis of the information and facts gained from the
news media and through my own scientific research, I have prepared and attached a
series of “statements of concern” regarding Gulf Coast fishermen, their damaged fishery
resources, and the recovery of those damaged resources. Please be advised of the
following:
2. It is still too early to determine the extent of the damages to the fishery resources on the
Gulf of Mexico that have resulted from BP's spilled oil and Nalco's sprayed Corexit
dispersants. If the oysters and other marine and estuarine species in Mexico's Laguna de
Terminos have not fully recovered 33 years after the 1979 Ixtoc-1 oil spill in the adjacent
Bay of Campeche, then we must anticipate a similar, slow recovery period for the
shellfish resources in Alabama, Florida, Louisiana, and Mississippi that were harmed by
the BP oil spill and its aftermath. Likewise, if the Pacific herring fishery in Prince
William Sound has not fully recovered 23 years after the Exxon Valdez oil spill in 1989,
then we should anticipate similar consequences for the finfish resources within the Gulf
of Mexico's "Fertile Fisheries Crescent" from Mobile Bay, Alabama, to Port Arthur,
Texas, where BP’s dispersed and sunken oil came ashore.
3. The federal government and its consulting teams have not completed the Natural
Resource Damage Assessment (NRDA) and the results of that assessment on the marine
and estuarine resources of the Gulf Coast areas from the “panhandle” of Florida to
Galveston Bay, Texas, are not yet available and may not be for several years. In addition,
those assessments cannot and will not provide accurate recovery estimates for damaged
shellfish and finfish stocks in the oiled Gulf Coast region. We must still acknowledge the
probability of long-term recovery periods like those that continue to plague the shellfish
and finfish resources in Laguna de Terminos and in Prince William Sound, respectively.
Any and all attempts to settle final claims for long-term fishery damages and losses for
the fishers should be held in abeyance until definitive information is available on the
damaged resources and the time – in years – that will be required for the natural recovery
of those public and private fishery resources.
4. Evidence continues to accrue that the blue crab, oyster, and shrimp fisheries in the central
Gulf are severely depressed and that those species are not recovering to anywhere near
the pre-April 2010 population levels and catches, contrary to BP claims in the news
media. These shellfish species are bottom dwellers for the most part and their life
histories and spawning grounds are still impacted by BP’s dispersed and sunken oil. The
fishers that depend on these depressed and severely impacted resources will continue to
suffer over the long-term, regardless of the fairness or lack of fairness of the proposed BP
settlement offer. BP should not be permitted to buy its way out of compensating the
Gulf’s fishers for the full extent of the damage that its oil and Nalco’s dispersants caused
following the April 2010 Macondo well (MC-252) blowout.
5. Evidence from scientific studies in Louisiana of Gulf killifishes, of bottlenose dolphins in
Barataria Bay, and of orange-cup corals on oil and gas platforms off Grand Isle, show
that not only are BP’s oil and Nalco’s dispersants severely impacting marine and
estuarine resources in Louisiana and other Gulf Coast states, but those studies suggest
that the Macondo well (MC-252) continued to leak crude oil long after it was supposedly
capped on July 15, 2010. Neither BP nor the National Atmospheric and Oceanic
Administration satisfactorily explained the continued leaking of oil into the Gulf from the
Macondo (MC-252) well site. Until and unless there is clear and irrefutable evidence that
crude oil is no longer flowing from BP Macondo Prospect and the relief well drilled
therein, no attempt should be made by BP, NOAA, or the Federal Court to force a
premature, final settlement on those harmed by that oil spill, including, but not limited to,
the finfishers and shellfishers, the marine resource agencies of the affected states, the
coastal residents who continue to suffer from medical maladies attributable directly or
indirectly to the spilled crude oil and its volatile and dissolved components, and the
tourism industry members and participants.
6. BP and its public-relations “apparatus” have continued to claim, fallaciously, that the
Gulf has “recovered” from the 2010 Deepwater Horizon oil spill. Nothing can be further
from the truth, and anyone with the ability for read and observe can see through the PR
façade of BP’s claims. BP’s attempts to disperse and sink its crude oil “out of sight and
out of mind” and its subsequent PR blitz was nothing more than a blatant attempt to avoid
full compensations for the harm that its “gross negligence” caused the marine and
estuarine resources as well as the citizens of the Gulf Coast.
7. BP’s provision of “recovery funds” to the affected Gulf Coast states will neither
compensate for nor fully restore the damaged resources to their pre-April 2010
conditions. Only time and Mother Nature can do that! State political entities have now
been established to oversee the “restoration” of the damaged resources. But those
“restoration” activities cannot and will not restore the damaged resources, only natural
healing and recovery can accomplish those long-term goals. In the meantime, the
“Restore Act” funds will be spent on everything under the sun – but not under the water –
and the marine and estuarine resources of the Gulf Coast will continue to suffer. The
fishers who have suffered the most following the oil spill should be paid to assist with the
restoration of their diminished resources. That will apparently not happen to any great
degree and that is a travesty.
8. One segment of the finfishing industry (i.e., Omega Protein, Inc.) has settled with BP;
however, that settlement is not an indication of the recovery of the Gulf’s menhaden
fishery. Menhaden are herring fishes that will suffer the same fate as the Pacific herring
whose population has still not recovered in Prince William Sound 23 years after the
Exxon Valdez oil spill in 1989. To assume that Omega Protein has been “made whole”
by the one-time payment of $26.2 million in June 2011 by BP’s Gulf Coast Claims
Facility fails to recognize the certain long-term effects of BP’s oil and Nalco’s Corexit
dispersants on the reproduction potential and survival of the early life stages of that
important species. Studies by personnel at the Dauphin Island Sea Lab in Alabama have
shown that populations of phytoplankton and zooplankton upon which the menhaden
feed may have been decimated by the spilled oil and sprayed dispersants thereby raising
doubts about the recovery of that species. And to my knowledge no fishery biologists or
research institutions in the Gulf are assessing the long-term impacts of the Deepwater
Horizon oil spill on Gulf populations of menhaden, one of the most important forage
fishes in the marine fish and bird food chains.
9. Dispersed and sunken deposits of BP’s oil continue to impact the north-central Gulf of
Mexico and the myriad estuarine and marine species that spend all of parts of their life
cycles in America’s Sea. Those deposits continue to affect blue crabs, shrimp, and
oysters that commercial fishers need to make their livelihoods and feed their families.
Those same oil deposits have continued to wash ashore as tar balls and mats on Gulf
Coast beaches throughout the spill zone including in central Louisiana during Hurricane
Isaac in August 2012. The lesions on offshore finfish, the shell lesions and deformities
on blue crabs, the spat failures on state and private oyster grounds, and the numerous
deformities and “growths” on commercial shrimp are clear very evidence to this marine
biologist and biological oceanographer that BP’s oil and/or Nalco’s dispersants are still
causing unprecedented problems for the Gulf’s fishing industries and the species they
depend on two years after the spill was supposedly stopped in July 2010.
10. The presence of oil in the wetlands and on marine birds and the oiled AND dead marine
birds in along the Louisiana coast following the landfall of Hurricane Isaac gives a clear
indication that BP’s oil is still adversely affecting Gulf Coast habitats and species and
will be doing so for years to come regardless of BP’s fallacious statements to the
contrary. Hurricanes and tropical storms that come ashore from Pensacola, FL, to
Galveston, TX, will continue to produce oiling events that will adversely affect coastal
wetlands, coastal estuaries, and the animals and plants that reside therein until those
deposits are removed by natural events – a process that will take decades -- if the lack of
full shellfish and finfish recovery in Laugna de Terminos and Prince William Sound,
respectively, are any indications of what lies ahead for the “Gulf of Oil.”
11. Please accept these statements as an indication of my serious concern for the recovery of
Gulf Coast habitats, fisheries, marine and estuarine species, and the affected humans,
notwithstanding BP’s claims of restoration and recovery to the contrary.
12. I declare under penalty of perjury that the statements made herein upon knowledge,
information and belief are true and correct this 6th day of September, 2012.
DATED on this 6th day of September 2012.
Edwin W. Cake, Jr.
__________________________________
Edwin W. Cake, Jr., Ph.D.