Hawaii Wildlife Fund et al v. County of Maui
ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND DENYING MOTION TO STAY PROCEEDINGS re 169 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 4/9/2015. (emt, )CERTIFICATE OF SERVICEParticipants reg istered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HAWAI`I WILDLIFE FUND, a
SIERRA CLUB-MAUI GROUP, a
SURFRIDER FOUNDATION, a nonprofit corporation; and
WEST MAUI PRESERVATION
ASSOCIATION, a Hawaii nonprofit corporation,
COUNTY OF MAUI,
CIVIL NO. 12-00198 SOM/BMK
ORDER DENYING MOTION FOR
INTERLOCUTORY APPEAL AND
DENYING MOTION TO STAY
ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL
AND DENYING MOTION TO STAY PROCEEDINGS
Defendant County of Maui (the “County”) moves for
certification for interlocutory appeal of this Court’s summary
judgment orders of May 30, 2014, and January 23, 2015.
The County also moves for a stay of further proceedings
in this action during the pendency of an appeal.
motions are denied.1
Appeals are generally permitted only from orders that
The court decides this matter without a hearing pursuant
to Local Rule 7.2(d).
“end the litigation on the merits and leave nothing for the court
to do but execute the judgment.”
Couch v. Telescope Inc., 611
F.3d 629, 632 (9th Cir. 2010) (internal quotation marks and
brackets omitted); accord Madoff v. Bold Earth Teen Adventures,
Civ. No. 12-00470 SOM/RLP, 2013 WL 3179525, at *2 (D. Haw. June
20, 2013) (“The general rule is that an appellate court should
not review a district court ruling until after entry of a final
However, 28 U.S.C. § 1292(b) contains a narrow
exception to the final judgment rule permitting immediate review
of certain nonfinal orders.
The County seeks certification of
this court’s summary judgment orders pursuant to that exception.
Under 28 U.S.C. § 1292(b):
When a district judge, in making in a civil
action an order not otherwise appealable
under this section, shall be of the opinion
that such order involves a controlling
question of law as to which there is
substantial ground for difference of opinion
and that an immediate appeal from the order
may materially advance the ultimate
termination of the litigation, he shall so
state in writing in such order. The Court of
Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its
discretion, permit an appeal to be taken from
such order, if application is made to it
within ten days after the entry of the order:
Provided, however, That application for an
appeal hereunder shall not stay proceedings
in the district court unless the district
judge or the Court of Appeals or a judge
thereof shall so order.
Thus, pursuant to 28 U.S.C. § 1292(b), a district court may
certify an interlocutory appeal if it is of the opinion that (1)
the order involves a controlling question of law, (2) there is
substantial ground for difference of opinion, and (3) an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.
The party seeking an interlocutory appeal bears the
“burden of demonstrating ‘exceptional circumstances’ justifying a
departure from the basic policy of postponing appellate review
until a final judgment has issued.”
Madoff, 2013 WL 3179525, at
Because § 1292(b) “is a departure from the normal rule that
only final judgments are appealable”, it “must be construed
James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068
n.6 (9th Cir. 2002).
Whether to certify an order for interlocutory appeal is
“within the sound discretion of the district court.”
Prot. Info. Ctr. v. Pac. Lumber Co., No. C 01-2821, 2004 WL
838160, at *2 (N.D. Cal. Apr. 19, 2004).
“Even where the
district court makes such a certification, the court of appeals
nevertheless has discretion to reject the interlocutory appeal,
and does so quite frequently.”
James, 283 F.3d at 1068 n.6.
This court declines to certify its summary judgment
orders for interlocutory appeal.
Certification of an interlocutory order under 28 U.S.C.
§ 1292(b) should be granted only in “rare” or “extraordinary”
James, 283 F.3d at 1068 n.6; U.S. Rubber Co. v.
Wright, 359 F.2d 784, 785 (9th Cir. 1966).
are not present in this case.
The County has failed to demonstrate that an immediate
appeal from this court’s summary judgment orders will materially
advance the ultimate termination of this litigation.
of litigation leading to rulings concerning liability, this court
is set to address the penalty phase and to issue a final judgment
within a matter of months.
It makes little sense, at this stage
of the proceedings, to permit certification.
The County asserts that it is “obvious” that an
interlocutory appeal could materially advance termination of this
lawsuit because “[i]f the Ninth Circuit were to reverse and hold
the County did not violate the Clean Water Act, the lawsuit would
ECF No. 169-1, PageID # 5952.
The same could be said
about many summary judgment orders, making it difficult for this
court to agree with the County that this is the extraordinary
case in which certification is appropriate.
The County also contends that certification would avoid
the expenditure of resources on the penalty phase of this case.
ECF No. 169-1, PageID # 5952.
But the resources that would be
saved do not appear significant when compared with the resources
that have already been expended.
While certification may be
warranted when “decision of an interlocutory appeal might avoid
protracted and expensive litigation,”
Wright, 359 F.2d at 785,
nothing in this case indicates that further protracted and
expensive litigation is likely.
In fact, the parties have
already filed papers and engaged in discovery relevant to the
Nor is the court persuaded by the County’s contention
that certification is appropriate given “the owners of the
thousands of other injection wells in the State who are now in
ECF No. 169-1, PageID # 5954.
that there are indeed thousands of other injection wells to which
this court’s analysis might apply, this court’s rulings are clear
enough that the owners of those wells can determine whether their
wells are affected.
This court’s rulings might, of course, be
reversed, but that is true of any trial court ruling.
that does not make the present situation extraordinary.
The County also focuses on the penalties it may be
subject to as a result of this court’s rulings.
complains that “Plaintiffs allege a statutory maximum penalty in
excess of $450 million” and that the County “either must deprive
 homes and businesses of wastewater services or face the
prospect of additional crippling penalties because of continued
unpermitted discharges into the wells.”
ECF No. 169-1, PageID #s
The County is in this situation because it has violated
the Clean Water Act.
The County’s concern is understandable, but
it does not demonstrate that certification is appropriate in this
In its reply memorandum, the County contends that any
prejudice Plaintiffs might suffer from an interlocutory appeal
and a stay pending appeal can be eliminated by an order requiring
the County to “in good faith . . . apply for and try to obtain an
ECF No. 182, PageID #s 6352, 6361.
the County, an “added benefit” of an order including an
injunction and that requirement is that the County could appeal
from such an order as of right.
Id. at PageID # 6352.
The court declines the County’s invitation to issue
such an injunction in response to the County’s motion for
certification of an interlocutory appeal and for a stay.
the court is scheduled to consider penalties over the next few
months, there is no reason to issue such an injunction now.
of course, the County needs no court order to pursue a permit.
Because the County fails to demonstrate that an
immediate appeal from the summary judgment orders may materially
advance the ultimate termination of this litigation, this court
does not certify the orders for interlocutory appeal.
The County’s motion for certification for interlocutory
appeal is denied.
As a result of that ruling, the County’s
motion for stay pending appeal is also denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 9, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Hawai`i Wildlife Fund, et al. v. County of Maui; Civil No. 12-00198 SOM/BMK;
ORDER DENYING MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL AND DENYING
MOTION TO STAY PROCEEDINGS
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