Hawaii Wildlife Fund et al v. County of Maui

Filing 242

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED ON LACK OF FAIR NOTICE AND GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING CIVIL PENALTIES re 172 , 176 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/25 /2015. (emt, )CERTIFICATE OF SERVICEParticipants registered 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
Hawaii non-profit
corporation;
SIERRA CLUB-MAUI GROUP, a
non-profit corporation;
SURFRIDER FOUNDATION, a nonprofit corporation; and
WEST MAUI PRESERVATION
ASSOCIATION, a Hawaii nonprofit corporation,

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)
)
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Plaintiffs,
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vs.
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COUNTY OF MAUI,
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Defendant.
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_____________________________ )

CIVIL NO. 12-00198 SOM/BMK
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
BASED ON LACK OF FAIR NOTICE
AND GRANTING PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING CIVIL
PENALTIES

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON
LACK OF FAIR NOTICE AND GRANTING PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING CIVIL PENALTIES
I.

INTRODUCTION.
The court has before it a motion for summary judgment

filed by Defendant County of Maui asserting that the County
lacked fair notice that it was subject to penalties given actions
it took without a National Pollutant Discharge Elimination System
(“NPDES”) permit.

Also before the court is a motion for partial

summary judgment filed by Plaintiffs Hawai`i Wildlife Fund,
Sierra Club, Surfrider Foundation, and West Maui Preservation
Association (collectively, “Plaintiffs”) that seeks to establish
the maximum number of statutory violations.

The court denies the

County’s motion and grants Plaintiffs’ motion.

II.

FACTUAL BACKGROUND.
The County of Maui operates the Lahaina Wastewater

Reclamation Facility (“LWRF”), a wastewater treatment facility
approximately three miles north of the town of Lahaina on the
island of Maui.
PageID # 5029.

See ECF No. 41, PageID # 451; ECF No. 139-10,
The facility receives approximately four million

gallons of sewage per day from a collection system serving
approximately 40,000 people.

See ECF No. 139-10, PageID # 5029.

The facility filters and disinfects the sewage, then releases the
treated effluent into four on-site injection wells.

See id.

The

effluent reaches a groundwater aquifer and eventually the ocean.
See ECF No. 129-13, PageID # 4230.
In a summary judgment order issued on May 30, 2014,
this court ruled that the County was violating the Clean Water
Act by discharging into navigable waters effluent containing
pollutants from two of the injection wells, wells 3 and 4,
without an NPDES permit.

See ECF No. 113.

In a separate summary

judgment order issued on January 23, 2015, this court ruled that
the County was similarly violating the Clean Water Act with
respect to discharges from the remaining two injection wells,
wells 1 and 2.

See ECF No. 162.

Having been found liable under the Clean Water Act, the
County seeks summary judgment in its favor with respect to
potential penalties, arguing that this court cannot assess

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statutory penalties against the County because the County lacked
fair notice that an NPDES permit was required.

See ECF No. 172.1

Plaintiffs, for their part, seek partial summary
judgment regarding the method of calculating the civil penalties
that may be assessed against the County.

See ECF No. 176.

Plaintiffs ask this court to determine the maximum possible
number of the County’s violations of the Clean Water Act by
counting the number of days within the limitations period that
effluent from each injection well was discharged and then
totaling the results for all four wells.

See ECF No. 176-1,

PageID # 6204.
III.

STANDARD.
Summary judgment shall be granted when “the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1

In the County’s motion for summary judgment, it stated
that it “reserves its right to provide additional undisputed
facts regarding agency public statements once the County receives
a complete response to its May 2014 FOIA to EPA.” ECF No. 172-1,
PageID # 5974. Based on this statement, the County supplemented
Appendix A to its motion for summary judgment three times without
leave of court. Under Local Rule 7.4, “[n]o further or
supplemental briefing shall be submitted without leave of court.”
Court staff responded to a request from the County’s counsel
regarding the manner of filing at least one of the County’s
supplements, but that was merely a logistical discussion that did
not constitute leave of court. The County may not reserve a
right it does not have. However, whether considering or striking
ECF Nos. 190, 194, and 216-8, the court reaches the same result
on the County’s motion.
3

1134 (9th Cir. 2000).

The movant must support his or her

position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Summary

judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
at trial.

See id. at 323.

A moving party without the ultimate

burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of

4

material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.

T.W. Elec.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587); accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).

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All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.

T.W. Elec. Serv.,

Inferences may be drawn from underlying

facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.

When “direct evidence” produced by the moving party

conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
fact.”

Id.

IV.

REQUESTS FOR JUDICIAL NOTICE.
In connection with its motion for summary judgment, the

County requests that this court take judicial notice of numerous
documents.

See ECF No. 173-2, PageID #s 6007-18; ECF No. 190-2,

PageID #s 6405-19; ECF No. 216-17, PageID #s 7074-80.

Plaintiffs

have not opposed any of the County’s requests.
The court takes judicial notice of the following
exhibits in support of the County’s motion for summary judgment
as either public records, government documents, or the contents
of the Federal Register: Exhibits 1 to 21, 23 to 42, the second
page of 43, and 44 to 45.

See ECF No. 173.

The court also takes

judicial notice of Exhibits 1 to 5 in support of the County’s
reply memorandum as public records and government documents.
ECF No. 216.

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See

The court declines to take judicial notice of Exhibit
22 (a letter), ECF No. 173, and Exhibits 52 to 67 (emails), ECF
No. 190, in support of the County’s motion, and Exhibits 6 to 12
(emails and notes) in support of the County’s reply memorandum,
ECF No. 216.

The County has not demonstrated that those

exhibits, even if generated by government officials, are proper
subjects for judicial notice.
V.

THE COUNTY IS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON
A LACK OF FAIR NOTICE.
A.

This Court Applies the Ninth Circuit’s
Articulation of the Required Fair Notice.

The County contends that it had no notice from relevant
statutes, regulations, or agency statements that its discharges
from the LWRF required an NPDES permit.
PageID # 5966.

See ECF No. 172-1,

According to the County, this lack of “fair

notice” precludes the assessment of penalties against it for
violations of the Clean Water Act.

See id.

The Due Process Clause of the Constitution requires
“fair notice of what conduct is prohibited before a sanction can
be imposed.”

Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996).

To provide fair notice, “a statute or regulation must ‘give the
person of ordinary intelligence a reasonable opportunity to know
what is prohibited so that he may act accordingly.’”

United

States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d
976, 980 (9th Cir. 2008) (quoting Grayned v. City of Rockford,

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408 U.S. 104, 108 (1972)).

In the absence of fair notice, a

party may not be deprived of property through civil or criminal
penalties.

See id.
The County relies on the D.C. Circuit’s articulation of

the required fair notice as notice that allows “a regulated party
acting in good faith [to] be able to identify, with
‘ascertainable certainty,’ the standards with which the agency
expects parties to conform.”

Gen. Elec. Co. v. EPA, 53 F.3d

1324, 1329 (D.C. Cir. 1995).

The Ninth Circuit uses a different

articulation of the requirement, saying that a statute or
regulation must “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that he may
act accordingly.”

Shark Fins, 520 F.3d at 980 (emphasis added

and internal quotation marks omitted).

The Ninth Circuit

recognizes that “due process does not demand unattainable feats
of statutory clarity” and “absolute precision in drafting laws is
not demanded, particularly where the law does not impose a
criminal penalty.”

Planned Parenthood of Cent. & N. Arizona v.

State of Ariz., 718 F.2d 938, 948 (9th Cir. 1983) (internal
quotation marks omitted).
At the hearing on its motion, the County contended that
the Ninth Circuit “directly and indirectly” relied on the
“ascertainable certainty” standard in its decisions in Shark
Fins, United States v. Trident Seafoods Corporation, 60 F.3d 556

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(9th Cir. 1995), and Phelps Dodge Corporation v. Federal Mine
Safety & Health Review Commission, 681 F.2d 1189 (9th Cir. 1982).
Under the circumstances of the present case, any
distinction between the Ninth Circuit’s and the D.C. Circuit’s
articulations is immaterial to this court’s analysis.
B.

The County Has Not Demonstrated That it Lacked
Fair Notice.

The County contends that the plain language of the
Clean Water Act does not provide notice that an NPDES permit is
required for the County’s discharges from the LWRF.

The County

reads the Clean Water Act as indicating that “wastewater disposal
through a UIC [Underground Injection Control] well into
groundwater does not require an NPDES permit.”

ECF No. 172-1,

PageID # 5970.
The Clean Water Act prohibits the “discharge of any
pollutant by any person.”

33 U.S.C. § 1311(a).

The Clean Water

Act defines “discharge of a pollutant” as “any addition of any
pollutant to navigable waters from any point source.”
§ 1362(12).

33 U.S.C.

There is an exception to the general prohibition on

the discharge of pollutants if a party obtains an NPDES permit.
See 33 U.S.C. § 1342.
The County has never disputed that it releases
pollutants from the LWRF that ultimately reach the ocean.

The

County’s motion itself characterizes this information as “public
knowledge.”

ECF No. 172-1, PageID # 5972.
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Nor has the County ever disputed that the four
injection wells at the LWRF are “point sources” under the Clean
Water Act.

See, e.g., ECF No. 125, PageID # 3715 (“The LWRF

injection wells are the only confined and discrete conveyances
here.”).

Indeed, the County could not plausibly deny that each

injection well qualifies as a point source, given the inclusion
of “well” in the definition of “point source” in 33 U.S.C.
§ 1362(14).
The County’s discharges from the LWRF clearly implicate
each statutory element necessary to trigger the NPDES permit
requirement: (1) the addition of a pollutant, (2) the pollutant’s
reaching of navigable waters, and (3) a point source as an origin
of the discharge of a pollutant.

It therefore makes no sense to

say as a matter of law that the County lacked fair notice.
The Ninth Circuit has recognized that the imposition of
civil penalties under 33 U.S.C. § 1319(d) is mandatory once a
violation of the Clean Water Act is found.

See Natural Res. Def.

Council v. Sw. Marine, Inc., 236 F.3d 985, 1001 (9th Cir. 2000);
Leslie Salt Co. v. United States, 55 F.3d 1388, 1397 (9th Cir.
1995).

Implicit in the Ninth Circuit’s recognition is the

concept that the Clean Water Act, by listing the elements of a
violation, provides the required notice.
The County’s argument also ignores the fair notice of
violations that Plaintiffs, as citizens, gave the County before

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filing this action.

This is a citizens’ lawsuit, a vehicle

expressly countenanced by the Clean Water Act that allows private
parties to protect Hawaii’s waters by suing over Clean Water Act
violations in the absence of protective action by public
officials.

See Molokai Chamber of Commerce v. Kukui (Molokai),

Inc., 891 F. Supp. 1389, 1402 (D. Haw. 1995) (“Both the Congress
and the courts of the United States have regarded citizen suits
under the Act to be an integral part of its overall enforcement
scheme.

The Ninth Circuit has recognized that Congress intended

citizen suits to be ‘handled liberally, because they perform an
important public function.’”).
Under the Clear Water Act, sixty days before filing
this kind of lawsuit, citizens must give an alleged violator of
the Clean Water Act notice of the alleged violations.
§ 1365(b).

33 U.S.C.

The notice must be detailed enough to allow the

alleged violator to identify the specific standard, limitation,
or order allegedly being violated; must describe the allegedly
violating activity; and must include the location of the alleged
violation, the persons responsible for the alleged violation, the
dates of the alleged violation, and the contact information for
the person giving notice and for any attorney representing that
person.

40 C.F.R. § 135.3.

“Notice is sufficient if it is

reasonably specific and if it gives the accused . . . the
opportunity to correct the problem.”

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Waterkeepers N. Cal. v. AG

Indus. Mfg., Inc., 375 F.3d 913, 917 (9th Cir. 2004) (internal
quotation marks omitted).
The County has never claimed that Plaintiffs are
proceeding in this lawsuit without having given the statutorily
required notice.
Plaintiffs have submitted evidence of notice they gave
the County even before the sixty-day notice period.

Plaintiffs

contend that, for several years before the filing of this
lawsuit, many of their members and other concerned citizens
repeatedly warned the County of potential Clean Water Act
liability resulting from the County’s discharges at the LWRF.
See ECF No. 208, PageID # 6758.

For example, on November 6,

2008, a member of Plaintiff Sierra Club-Maui Group, among other
individuals, testified regarding the County’s noncompliance with
the Clean Water Act at an Environmental Protection Agency (“EPA”)
hearing attended by County personnel.
#s 6780-81; ECF No. 209-4.

See ECF No. 209-2, PageID

Evidence of such repeated warnings

raises, at the very least, triable issues of fact as to whether
the County lacked notice of potential liability.

See also ECF

No. 209-1.
The County’s assertion that it is entitled to summary
judgment on the fair notice issue is also called into question by
factual disputes regarding the nature of agency action relating
to the LWRF.

Plaintiffs contend that the EPA put the County on

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notice that its discharges from the LWRF might violate the Clean
Water Act on at least two specific occasions.

The first

allegedly occurred in January 2010, when the EPA required the
County “to conduct sampling, monitoring and reporting . . .
pursuant to section 308(a) of the Clean Water Act” to determine
compliance with the Act.
208, PageID # 6752.

ECF No. 209-25, PageID # 6920; ECF No.

According to Plaintiffs, such a requirement

can only be imposed under section 308(a) on the “owner or
operator of [a] point source.”

33 U.S.C. § 1318(a)(A).

The second allegedly occurred in March 2010, when the
County received a letter from the EPA instructing the County to
apply for a water quality certification from the State of Hawaii
pursuant to section 401 of the Clean Water Act.
PageID # 6753.

See ECF No. 208,

The EPA required the certification based on its

determination that “the County of Maui’s operation of the [LWRF]
may result in a discharge into navigable waters.”
26, PageID # 6928.

ECF No. 209-

The section 401 certification required the

State of Hawaii to certify that discharges from the LWRF complied
with 33 U.S.C. § 1311, the section under which this court
eventually found the County liable.

See 33 U.S.C. § 1341.

Plaintiffs contend that these two EPA actions were clear
indications to the County that it was at risk of being found
liable for violating the Clean Water Act.

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The County views the EPA’s directives in a different
light.

See ECF No. 216, PageID # 6972.

According to the County,

the EPA was acting in connection with the issuance of a new UIC
permit, not in connection with potential Clean Water Act
liability for discharges from the LWRF.

See id.

The EPA’s

intent appears to be the subject of a factual dispute precluding
summary judgment at this point.
At the very latest, the County had fair notice that it
was violating the Clean Water Act once this court issued its
first summary judgment order on May 30, 2014.

In that order,

this court found the County liable under the Clean Water Act in
connection with discharges into navigable waters of effluent from
two of the four injection wells without an NPDES permit.

See ECF

No. 113.
The County says that even with this court’s earlier
order it lacked fair notice because it had already taken the only
action it says it could have taken to ensure compliance by filing
an NPDES permit application in November 2012.
does not establish a lack of fair notice.

This application

It is, rather, an

argument as to the practicability of ending the violation, a
different issue entirely.

Moreover, it makes little sense to say

that one can violate the Clean Water Act without penalty as long
as one has an NPDES permit application pending.

One might as

well argue that one can drive a car if one has a driver’s license

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application pending, or can travel to a country requiring a visa
if one has a visa application pending.

The County’s argument may

go to other reasons that the County believes it could continue
discharges even after this court’s ruling, or to circumstances
that might mitigate any penalty, but the argument does not speak
to fair notice.
Because the County fails to demonstrate that it is
entitled to judgment as a matter of law as to its fair notice
argument, its motion is denied.
VI.

PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT
REGARDING THE CALCULATION OF THE MAXIMUM NUMBER OF THE
COUNTY’S CLEAN WATER ACT VIOLATIONS.
The Clean Water Act provides for the mandatory

imposition of civil penalties once a violation is found.
U.S.C. § 1319(d); Sw. Marine, Inc., 236 F.3d at 1001.

See 33

The Clean

Water Act sets forth a maximum penalty per day for each
violation.

33 U.S.C. § 1319(d).

Plaintiffs contend that the

number of the County’s violations of the Clean Water Act should
be calculated by counting the number of days within the
limitations period that the County discharged effluent from each
of the four injection wells, then adding the totals from the four
wells.

See ECF No. 176-1, PageID # 6204.
The County contends that partial summary judgment

should not be granted to Plaintiffs on this calculation issue
because the number of violations is not necessarily relevant to

15

this court’s penalty calculation.
6599.

See ECF No. 203, PageID #

The County argues that “[t]he number of violations is an

important step under the ‘top down’ method [of calculating
penalties], but under the ‘bottom up’ method, may be just one
factor among many considered.”

Id. at PageID # 6600.

Under the “top down” method of determining penalties,
“a court is to [first] calculate the maximum penalties that can
be awarded against a violator of the Act.”

Hawaii’s Thousand

Friends v. City & Cnty. of Honolulu, 821 F. Supp. 1368, 1395 (D.
Haw. 1993).

The court then “us[es] the maximum penalty as a

guideline” to “set the actual penalties by analyzing the specific
statutory factors” in 33 U.S.C. § 1319(d).

Id.

Under the “bottom up” method, “the economic benefit a
violator gained by noncompliance is established and adjusted
upward or downward using the remaining five factors in
§ 1319(d).”

United States v. Mun. Auth. of Union Twp., 150 F.3d

259, 265 (3d Cir. 1998).
As the County itself acknowledges, the number of
violations is relevant to both approaches.
PageID # 6600.

See ECF No. 203,

This court is not required to deny Plaintiffs’

motion simply because the number of violations is “just one
factor among many” using the “bottom up” approach.

Regardless of

which approach this court uses, the number of violations may be
considered.

See Hawaii’s Thousand Friends, 821 F. Supp. at 1383

16

(“In evaluating the seriousness of the city’s . . . violations,
the court looks to several factors, including, but not limited to
. . . the number of violations.”).
With respect to calculating the number of the County’s
violations, Plaintiffs contend that “an unpermitted discharge
from one point source constitutes a distinct and separate
violation from an unpermitted discharge from another point
source.”

See ECF No. 176-1, PageID # 6203.
The County, on the other hand, contends that it is

subject, at most, to one violation per day even if it discharged
effluent from each of the four wells during that day.
No. 203, PageID # 6597.

See ECF

The County, reading this court’s order

of May 30, 2014, as determining that groundwater itself is a
point source, says that discharges from all four wells went into
the groundwater, and it was through the groundwater that
pollutants reached the ocean.

According to the County, the

aggregate discharge through groundwater must be a single
violation each day.
The County’s reading of this court’s order is
incorrect.

Contrary to the County’s assertion, this court’s

order merely noted that groundwater could constitute a “confined
and discrete conveyance.”

See ECF No. 113, PageID #s 3654-55.

This court did not rely on the proposition that the groundwater
in this case served as a point source.

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The County also argues that, in indirect discharge
cases, “it is the outfall to navigable waters that matters for
purposes of liability.”

See ECF No. 203, PageID # 6598.

As

noted above, the County contends that groundwater is a single
source, subjecting the County to only one violation per day,
rather than to four violations per day.

Id. at PageID # 6598.

The County fails to cite any authority supporting the
proposition that the number of Clean Water Act violations is tied
to the “outfall to navigable waters.”
6598.

See ECF No. 203, PageID #

At most, the County cites this court’s order of May 30,

2014, but this court made no determination in that order that the
calculation of violations is based on the outfall to navigable
waters.
The court disagrees with the County’s approach.

The

County’s argument ignores the four point sources involved.

If

the County discharged effluent from all four wells in a day, it
is liable for four violations.

See Highlands Conservancy v.

E.R.O., Inc., Civ. A. No. A:90-0489, 1991 WL 698124, at *4
(S.D.W. Va. Apr. 18, 1991) (“[T]he Clean Water Act considers each
point source as giving rise to a distinct and separate discharge
violation.”).

The Clean Water Act would require penalties even

if the discharge of effluent into the ocean came solely from well
1.

No governing law suggests that, when four wells are involved,

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the same single violation is in issue.

Indeed, counting multiple

acts as a single violation could invite increased pollution.
Plaintiffs are entitled to summary judgment as to the
method of calculating the maximum number of violations by the
County under the Clean Water Act.

That maximum is calculated by

first counting the number of days within the limitations period
that effluent from each injection well was discharged, then
totaling the figures for the four wells.

This calculation will

not necessarily equate with actual penalties that end up being
assessed, but the court here determines that a discharge of
pollutants from one well on one day counts as one violation, and
a discharge on the same day from another well counts as a
separate violation.
VII.

CONCLUSION.
The County’s motion for summary judgment based on lack

of fair notice is denied.

Plaintiffs’ motion for partial summary

judgment regarding civil penalties is granted.

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 25, 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ON LACK OF FAIR
NOTICE AND GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING
CIVIL PENALTIES

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