Drakes Estero diver sues park contractors


Matt Zugsberger, a diver employed last year to help pull the remains of Drakes Bay Oyster Company from Drakes Estero, has filed a lawsuit in district court against the two companies hired by the National Park Service to complete the $4 million job.

Among a multitude of claims, Mr. Zugsberger, who is represented by three separate law firms, alleges that the companies T.L. Peterson and Galindo Construction defrauded the park service by disposing of toxic waste pulled from the estero at unauthorized sites. He also describes negligence on the job site resulting in his personal injury and claims he was wrongfully terminated after voicing his concerns. 

The suit, originally filed in April, went public this Tuesday. Because the lawsuit involves alleged government fraud, there was a delay while the Department of Justice deliberated whether or not to take over the case. Following an investigation, the department determined not to. Representatives declined to comment on the reasons. 

Peter Prows, a San Francisco attorney who specializes in environmental law and is handling one aspect of the suit, said that decision “has no bearing on the case’s merits.” There is not yet a date set for the first court hearing.

“After a year of listening to falsehoods, we are going to see if they are telling the truth—and let the truth be out in federal court,” said Mr. Zugsberger, an Upper Lake resident who first voiced his concerns about the Drakes Estero project to this newspaper last January. He estimates that he stands to gain upwards of $1 million if the lawsuit is successful.

A year-long project that finished in May, the Drakes Estero Restoration Project was a multi-million-dollar endeavor funded by the park service and the National Park Foundation to remove racks and other remnants from Drakes Bay Oyster Company, which was shuttered in 2014 after a legal battle with the federal government.

“We did not employ Matt and so we don’t know anything about why he would file a lawsuit against us,” Earnest Wilson, a project manager for T.L. Peterson, a Red Bluff company that held the primary contract with the park service, told the Light this week. 

Mr. Wilson declined to comment further, directing all comments to the park service, which declined to comment for this story because the litigation is pending. 

Galindo Construction, a subcontractor based in Walnut Grove that completed much of the work and employed Mr. Zugsberger, did not return calls before press time.


The False Claims Act

The suit’s first claim states that the park service paid T.L. Peterson and Galindo nearly $1.3 million of the project’s total $4 million to dispose of certain debris—primarily the treated, wooden oyster racks that had been long lodged into the estero floor—at a “Class I” landfill authorized to receive toxic materials.

“But Peterson and Galindo did not dispose of that debris at a Class I landfill; they took the $1.3 million, but disposed of the debris… at lesser sites not authorized to receive toxic materials,” the suit states. 

Thus, it continues, T.L. Peterson and Galindo are liable under the False Claims Act, a law that rewards whistleblowers in successful cases in which the government recovers funds lost to fraud.

The claim categorizes the lawsuit as “qui tam,” part of a Latin phrase that in full means “[he] who sues in this matter for the king as well as for himself.” 

According to Mr. Prows, if proven true, T.L. Peterson and Galindo would be required to pay back the park service the awarded funds times three—an amount that would approach the cost of the original contract.

Though it is outside the scope of this suit, the implications of the presence of toxic waste are broader than fraud. The original contract between T.L. Peterson and the park, which was obtained by this newspaper through the Freedom of Information Act with the help of the Russian River Times (which has also closely followed this story), specifies that the material should be disposed of at a Class I facility. That fact points to the park service’s awareness that the wood was toxic and goes against other public documents that describe the scope of the project. 

For example, the park’s categorical exclusion form, which evaluated the environmental impacts of the project, did not account for the presence of toxic wood waste. 

Had the wood been listed as hazardous, the park would very likely have been compelled to undergo a more extensive environmental permitting process.


The Jones Act

Mr. Zugsberger, an experienced commercial diver, was hired to pull up wood and debris by hand from the estero floor, often bringing large quantities back up to a floating barge. He worked from August 2016, when the project commenced, until he was fired by Galindo Construction on Nov. 14, 2016.

The second part of the lawsuit details numerous points of “negligence” and “unseaworthiness” on the barge that Galindo used. These claims fall under the Jones Act, a 1920 federal statute that regulates commercial vessels. (Though Galindo did much of the work and owned the boat used in the project, Mr. Zugsberger also included T.L. Peterson in some of the claims, since it had a representative overseeing the project.) 

The claims include that both companies failed to enforce proper and safe working conditions, to provide proper gear and equipment at the job site and to warn Mr. Zugsberger of impending dangers. The suit states that the companies “acted so negligently as to cause [him] to be repeatedly exposed to various chemicals and harmful substances resulting in severe injuries, including but not limited to chemical burns.” It goes on to claim that Mr. Zugsberger was hurt and injured in his “health, strength and activity, sustaining injury to his body and shock and injury to his nervous system and person” and that his “injuries will result in some permanent disability.”

Damages for these claims include compensation for past and future wage loss, medical expenses and general damages, such as “pain and suffering.”

Even if Mr. Zugsberger cannot prove that the contractors were at fault for his injuries, he is still entitled to “maintenance and cure and unearned wages,” the suit states. This means he would be owed all unearned wages for the period of employment with Galindo as well as the cost of living—including rent, food, etc.—and the payment of medical expenses through “maximum medical improvement.” 

He is also pursuing punitive damages in addition to all legal fees and medical bills. 


California labor codes 

The remaining claims relate to Mr. Zugsberger’s termination by Galindo Construction and the wage he was paid during his employment.

In response to a formal complaint Mr. Zugsberger filed last year with the Department of Labor, an investigation by that agency determined this summer that he was indeed underpaid.

Mr. Zugsberger told the Light earlier this year that when he took the job, he had understood that he would be paid as a diver—at a rate of $119 an hour—but pay stubs confirm that he was paid $46.80 an hour as a “group 7 laborer,” a type of construction worker classified under the Davis-Bacon Act.

Mr. Zugsberger argued that he should have been paid as a diver every day, since he was free diving underwater and entering a “hyperbaric” state, or under pressure greater than that in the atmosphere. A labor union that represents marine workers supported his argument in a letter to the Department of Labor written after the union’s president, Jim Johansen, visited the project site in late October last year.

Yet, adding to the dispute, the Occupational Safety and Health Administration defines a diver as using an air tank, which Mr. Zugsberger did for just one day, and he was paid as a diver for that day.

The Department of Labor ultimately determined that he should have been paid as a “pile driver,” which receives a wage below that for a diver and above that for a laborer. (Pile driving involves installing and removing piles driven into the ground.)

In June, Galindo paid Mr. Zugsberger the difference between the laborer’s rate he was paid and that of a pile driver: $6,000.

But the lawsuit disputes this rate of pay and the full amount he is owed, based on numerous provisions of state law. It argues that there was an oral contract with Galindo that Mr. Zugsberger would be paid as a diver and that diving without air is deemed unsafe by California public policy. 

As compensation for these damages, the suit argues he should be awarded back wages for a diver’s pay.

The suit also includes that under state law, Mr. Zugsberger is owed the difference in wages for his overtime work (which the Labor Department order did not account for) as well as an additional payment of 10 percent interest on the wage upgrade to account for the lag-time until Galindo finally paid him. 

Additionally, it argues that Mr. Zugsberger should be compensated for the housing that he said his employer promised him, and 10 percent interest on that amount. 

The suit also alleges that Galindo fired Mr. Zugsberger out of retaliation after he complained about workplace safety matters and what he believed were violations of state and federal laws. These claims would result in a $10,000 penalty in addition to damages for the wrongful termination.

There are a number of other claims, including that Mr. Zugsberger did not receive a meal break or rest period and therefore is entitled to two additional hours of daily backpay and that his earning statements reflected the wrong amount of pay—a $50 penalty for the first offence and $100 for every following.

Though some of these claims seek to recover the same damages, attorney Bruce Highman, who is handling the suit’s labor code violations, clarified that the suit is not seeking redundant awards. Rather, he said, it is prudent to use multiple legal arguments in order to maximize the likelihood of success.