In 2006, after months of trying to convince the City of Seward to get the right permit to help reduce water pollution at their ship yard repair facilities in the uplands at SMIC, we reluctantly decided to sue the City to compel them to do the right thing. Its been a long 6 years (and it remains unsettled).

Here are links to relevant websites and documents that describe RBCA's side of the lawsuit, starting with the most recent from RBCA, a list of frequently asked questions that seeks to dispel misinformation presented in the community.

The RBCA v CITY OF SEWARD LAWSUIT:
FREQUENTLY ASKED QUESTIONS


zero

Why did RBCA file a lawsuit against the City of Seward?
RBCA filed the lawsuit to compel the City to get a storm water pollution prevention permit. The permit requires the City to make sure that pollutants from boat work, such as toxic paint chips, fuel, and oil, do not run off into Resurrection Bay with rain and snowmelt.

Why did RBCA sue instead of trying other means?
RBCA tried to persuade the City to get the proper permit for 18 months before filing suit. While the City claims that EPA told them that they did not need a permit, EPA provided testimony in the case that it did not give that direction to the City.

When did this lawsuit begin? 
The intent to sue was sent in April of 2006, but RBCA had sent a letter in March 2005 alerting the City to the problems at the boat repair yards. RBCA filed the lawsuit in September 2006, giving the city five months, rather than the required 60 days, to consider their course of action, over twice the legally required time. The previous City administration had indicated that they planned to get these permits; the current administration decided to fight it.

Did RBCA sue for $76 million?
No, a money award to RBCA is not allowed under the Clean Water Act. Once the judge found that the City had violated the Clean Water Act, he was required to assess civil penalties that are paid to the US Treasury. The City made the claim that RBCA sought $76 million, which the City calculated as the maximum allowed under the Clean Water Act. In fact, RBCA agreed with the judge’s order to assess a civil penalty of one dollar.

Is there evidence of pollution?
Yes. The Clean Water Act requires boat repair yards to obtain a permit and put measures in place to prevent pollution. This is because EPA has determined that “storm water associated with industrial activity,” like the runoff from the boat yards, discharge pollution as a matter of law.

Who won the lawsuit?
RBCA. 

Why is the lawsuit still unsettled?
After RBCA won three years ago, the court did not allow RBCA to seek attorneys’ fees. So, RBCA appealed that decision and the City appealed another issue. The issue the City raised on appeal was finally decided by the court in 2010, so the remaining issue is attorneys’ fees. RBCA’s attorneys have not received any attorneys’ fees while they have litigated the case; they provided their time free of charge to RBCA and would seek fees, if the case was successful. The Clean Water Act allows the “prevailing party” to be awarded their attorneys’ fees. The City's unwillingness to resolve the fee issue has resulted in more litigation than the merits of the case (almost three years).

Didn’t the City offer to pay the legal fees?
The City has offered to pay a small fraction - maybe 5%. The current tab for RBCA’s attorneys is close to $150,000, which is slightly less than what the City has paid for their attorney. The fee is large because the City has unwisely refused to settle the issue after two appeals to the Ninth Circuit finding that RBCA is entitled to a reasonable attorneys’ fee award.

Wouldn’t the attorneys’ fees for Trustees for Alaska be better spent elsewhere in the City?
That is what we all would prefer. However, under the Clean Water Act, the losing party is responsible for the prevailing party’s attorney fees. If the City had gotten the required permit before the case was filed or had settled the attorneys’ fees issue before the second appeal, a lot less money would have been spent by all the parties. Since RBCA prevailed with the help of its attorneys, it is morally and contractually obligated to reimburse Trustees for Alaska by seeking fees from the court. RBCA will receive no money.

What "on the ground" changes have occurred as a result of this law suit?The City has obtained the required stormwater pollution permit for SMIC. Signs have been posted at SMIC informing boat owners that they have to contain, collect and dispose of their waste products. Seward Harbor staff is also actively monitoring vessels for boat maintenance discharges, and contacting non-compliant boat owners when necessary.

Click here for a PDF of these infrequently asked questions.

More information

EPA report on contaminants at SMIC. This report documents water pollution sources at Seward Ship's Drydock: http://yosemite.epa.gov/R10/CLEANUP.NSF/9f3c21896330b4898825687b007a0f33/d5be1084f796985e8825677e0082b0e1/$FILE/Seward-Ships-Dry-Dock-SI-Rpt.pdf

The City of Seward published this request for RBCA to end the lawsuit: http://sewardcitynews.com/2011/06/08/city-responds-to-rbca-lawsuit/

Russ Maddox’s response to City’s claims: http://sewardcitynews.com/2011/06/10/russ-maddox-responds-to-city/

Further explanation: http://www.adn.com/2011/06/15/1918735/seward-water-pollution-lawsuit.html

Legal decision regarding fees: http://www.ca9.uscourts.gov/datastore/opinions/2011/05/19/10-35446.pdf