The Inexplicable Lawsuit Against KKMI
On Friday, Keefe Kaplan Maritime, Inc., or KKMI, will face off against the California Sportfishing Protection Alliance (CSPA) in federal court at a settlement hearing to resolve allegations made by CSPA that KKMI is violating the federal Clean Water Act and its discharge permit with the San Francisco Regional Water Control Board. This settlement conference follows nine months of fruitless negotiations to resolve the conflict. In its lawsuit, CSPA alleges that KKMI’s discharge of pollutants threatens or impairs the ability of its members to ” . . . fish, sail, boat, kayak, swim, bird watch and engage in scientific study . . .” in the Santa Fe Channel, where KKMI is located. In addition, CSPA alleges that KKMI is discharging more copper into the water than is allowable under California Toxics Rule guidelines, which they say is a violation of the terms of its discharge permit.
Neither of these claims withstands serious scrutiny, but the costs incurred by KKMI in defending itself will ultimately be borne by the boating public, adding to the costs of boat ownership in the Bay Area and beyond. By raising the costs of ownership, the CSPA lawsuit may very well prove to be counterproductive, undermining sportfishing, environmental stewardship, and water quality in and around the Bay Area. Furthermore, by filing such a lawsuit, CSPA may itself be violating the terms of its own nonprofit charter, which requires that it operate for the public good.
The first allegation, that KKMI impairs the use of the Santa Fe Channel, is nonsense. There is a kayak launch ramp open to the public immediately adjacent to KKMI, and nothing that KKMI does impairs the use of that ramp. For many years, we had a friend who lived aboard his boat in the Santa Fe Channel, and we sailed there many times to visit. The channel is, however, a deepwater port, and we have often had to wait for tugboats and large ships to clear the channel before being able to proceed.
The second allegation is more complicated, but KKMI has been notably forthright in documenting their discharges and submitting their data to the Regional Board. Hence, the governmental unit tasked with overseeing the discharge permit is fully aware of KKMI’s activities, and does not believe that KKMI is violating the law.
The Clean Water Act is a complicated piece of legislation, and complying with its requirements can be extremely challenging. However, KKMI has demonstrated a strong commitment to meeting the requirements of the law, and in many cases, sets the standard for environmental stewardship among boatyards in the Bay Area and across California.
Efforts to contact CSPA to better understand what they are trying to accomplish with their lawsuit were unsuccessful, but it’s our opinion that their actions have nothing to do with protecting either sportfishing or water quality. By raising the costs of boat ownership, they run the risk of undermining both of these professed goals.
Many of the resource management programs supported by the California Department of Fish and Wildlife are supported by fishing and big game licenses. If the cost of boat ownership becomes too prohibitive, the people who buy fishing licenses will stop buying, and the revenues used to manage fishery resources will be reduced. This will have a detrimental impact on fisheries and sportfishing.
Likewise, due to the increased costs of yard services at a yard that is continually striving to improve the environmental quality of its operations, boat owners may forego boatyard services altogether — or worse, give up sailing because it’s become too expensive. This would be unfortunate for many reasons, not least because well-maintained boats are invariably cleaner than boats that are poorly maintained. This will have a detrimental impact on water quality, and on the quality of the experience we sailors and boaters have when we are out on the water.
Ahead of the settlement hearing on Friday, February 15, we urge our readership to support KKMI in this matter. As sailors and stewards of our environment, let us hope that the parties reach an agreement.
This editorial has been updated.
Unfortunately what CSPA is doing is not new. Working in an industry that is required to monitor, among other things, discharges to bodies of water, we are always wary of the next ‘group’ that wants to sue a business that has money. Because at some point the settlement costs are cheaper than the court costs.
I get every word of the positive views of KKMI. I have been and will remain their loyal customer and I respect their obvious sincere effort at being among the cleanest boatyards around. However, my legal training suggests that some of the blind support for KKMI you list may be a little wishful thinking. First, if the SF Regional Water Board “doesn’t believe KKMI is violating the law” then why settle? As for the more broad based Clean Water Act and it’s complications, good faith and clear science (water quality samples) will go a long way in allowing a judge to rule in favor of defendants. A frivolous lawsuit is viewed very unfavorably by the courts. As for the other allegedly demonstrably false claims in the CSPA suit, it seems to me that they are highly subjective and would be extremely difficult to assess damages even if found to be true. It seems to me , without reading the complaint and pleadings that KKMI is getting some strange advice (about settling) if they are indeed totally innocent of these alleged violations.
I spend a bloody fortune with KKMI and if a slightly higher yard bill ACTUALLY DID result in cleaner water, I suspect that I and other active yachtsmen and women would pay. But to settle a frivolous suit that is without any merit (highly unlikely), ultimately encourages the plaintiff to continue this practice (for motives that on the surface seem totally inconsistent with their professed purposes) and STILL raises boatyard costs for all. I’d really like to know more about this.
Jose — You bring up an interesting point. Here’s an excerpt from an article from HMS Lawgroup News that offers some context: https://www.hmslawgroup.com/clean-water-act-citizen-suit-shakedown
” . . . In the last 3-5 years the majority of the defendants targeted in Clean Water Act citizen suits in Northern California are small businesses and the allegations are often based on violations of pollutant constituent standards that are ill defined in the defendants’ Clean Water Act permits. Because these lawsuits are relatively technical and therefore costly to defend, most defendants elect to settle rather than litigate . . . Ultimately the main beneficiaries of this system are the citizen-plaintiffs, who are almost always environmental groups and their eco-lawyers, hence [the article’s] description of citizen-suit actions as “shakedowns”.
We have heard this kind of suit described simply (but astoundingly) as a cost of doing business.
It’s also our understanding that a defendant cannot counter-sue in some cases relating to the Clean Water Act. The reason is laudable: if a citizen brings a suit against a large corporation for dumping toxins into a river, the corporation can’t just counter-sue the citizen into oblivion. So, even in the case of a lawsuit perceived as being frivolous, the defendant, in some cases, has little recourse.
This sort of thing keeps happening over and over in California and it’s sad for me. Too many frivolous lawsuits! Less boat yards and small businesses and higher costs to boaters/consumers. I love a healthy environment, but way too much bureaucracy is stifling. After living in CA for 52 years I am seriously considering taking my pension money and savings to Mexico where I can enjoy some freedom and a plentiful affordable boating retirement.
KKMI has the best environmental controls I’ve seen in the Bay Area. Furthermore, the Santa Fe Channel is home to many other maritime activities, including shipyards, commercial shipping, and restored military vessels. Attributing any part of any supposed pollution to them is impossible. In sum, their accusations are absurd. This is nothing but a shakedown of a deep pockets victim.
i urge whomever reads this to take a moment and email [email protected]. This is a shakedown of KKMI because they look successful. There are plenty of boatyards in SoCal that could be suspect but not KKMI
I have written my emails to calsport.
Another example of litigious extortion (legal blackmail) By attacking a business operating legally in a well regulated industry, the plaintiffs are concurrently accusing the State of not doing its regulatory job. This sort of complaint should be lodged against the State as well, if any wrong can be proven.
By taking it to court against the business, it is simply an attempt to force a settlement for money to finance the attorneys in the little enterprise they have created, and fund further attacks of the same specious nature.
KKMI is, in my opinion, the Bay Area’s most important and responsible boat yard. Simply put, KKMI’s services are essential to environmentally conscious boat owners. KKMI’s efforts at regulatory compliance are exemplary and appreciated. An attack upon KKMI is an attack upon our area’s environmentally aware boat owners, operators and long-time coastal northern Californians who care for our waters and wish to enjoy them with a clean and active conscience. I suggest that all entities endeavor to find solutions instead of suits. With due respect to CSPA leadership, your entity’s actions seem short-sighted, vague and of dubious intent. To KKMI, I say hold fast, stay the course of environmental stewardship and lead the way for your clientele, other yards and all environmentally responsible San Francisco Bay Area boaters!
Funny I don’t remember seeing a sportfishing exhibit at the Rosie the Riveter Museum in Richmond. Simply Absurd. The truth will set you free, and the truth is KKMI has received not one, but two national Boatyard of the Year awards largely due to their environmental stewardship.
http://www.kkmi.com/wp-content/uploads/2011/12/KKMI-Pro-Boat-Magazine.pdf
They are a big advertiser and source of revenue for Lat. 38.
Rich — that is absolutely true. KKMI is a longtime advertiser with Latitude 38.
We don’t beleive this fact effects our objectivity, and we don’t believe that being independent reporters and having an advertiser be the subject of a story are mutually exclusive scenarios.
Clean water. Everybody wants it. The CSPA is using this diversion tactic so it looks like its “doing its job”. They have been frustrated in their attempts to get local sewage plants to comply. Every high tide or rain storm Sausalito and Mill Valley plants overflow. Not to mention spillage from the big container ships. So lets pick on the small business servicing the Bay Area boating community. Easy mark. CSPA Board of Directors. Who are these people? What do they get out of this? Let me guess..$$$
My comments would simply be redundant to all of the comments above. That said, I know the key folks at KKMI, and would trust their actions against unsubstantiated allegations by only one so – called organization.
Swim? Boiler Plate, must be about money.
I wonder if CSPA is being used by another one of these groups of lawyers that we see more and more of these days. Their business model is to find any situation in which they can file suit for the purpose described in many of the comments above: simply knowing the probability is high that they will win a settlement without trial. Their business model shows a tidy profit with a favorable settlement, but also works to a lesser degree if it goes all the way to court and they win. Of course they could lose everything, but they have a pretty good chance of success. I am acquainted with a small, successful Northbay business which has just filed for bankruptcy due to an attack by such a group. The claims are ridiculous but the sharks have a depth of knowledge of the regulations that far surpasses everyone else involved so they find ways to present a “case” to the judge that sounds compelling. The more complicated the situation, the better for them. I hope KKMI can fight off these guys so they have less incentive to keep feeding on this scheme that is damaging to society. It hurts responsible small businesses and it hurts legitimate environmental efforts. Too many bored lawyers!
Assuming the courts find that this is a frivolous lawsuit, is there any penalty incurred by CalSports? Can they lose their non-profit status? Is there a mechanism that KKMI can pursue to remove their non-profit status or to disbar the attorney who heads the organization? If sleazy attorneys and make-believe non-NGOs with no constituency can get away with these shakedowns or face no penalty when they fail, we can expect them to keep shaking down honest players.