Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.

Filing 770

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND PARTIAL SUMMARY JUDGMENT FOR DUPONT PIONEERS MISUSE OF BEE-TOXIC PESTICIDES re 701 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/30/2014. (eps)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
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., a DuPont
Business and Iowa
Corporation, GAY & ROBINSON,
INC., a Hawaii corporation;
ROBINSON FAMILY PARTNERS, a
general partnership
registered in Hawaii; and DOE
DEFENDANTS 1-10,
Defendants.
_____________________________
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., et al.,
Defendants.
_____________________________

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CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
AND PARTIAL SUMMARY JUDGMENT
FOR DUPONT PIONEER’S MISUSE OF BEE-TOXIC PESTICIDES
On April 8, 2014, Plaintiffs Jim Aana, et al., on
behalf of themselves and all others similarly situated

(collectively, “Plaintiffs”),1 filed their Motion for Preliminary
Injunction and Partial Summary Judgment for DuPont Pioneer’s
Misuse of Bee-Toxic Pesticides (“Motion”).

[Dkt. no. 701.]

Defendants Pioneer Hi-Bred International, Inc. (“Pioneer”), Gay &
Robinson, Inc., and Robinson Family Partners2 (all collectively
“Defendants”) filed their memorandum in opposition on June 2,
2014, and Plaintiffs filed their reply on June 9, 2014.
nos. 752, 757.]
2014.

[Dkt.

This matter came on for hearing on June 23,

After careful consideration of the Motion, supporting and

opposing memoranda, and the arguments of counsel, Plaintiffs’
Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background of this
case is set forth in this Court’s: August 9, 2013 Order Granting
in Part and Denying in Part Defendants Gay & Robinson, Inc. and
Robinson Family Partners’ Motion to Dismiss Plaintiffs’ Second
Amended Complaint Under Fed. R. Civ. P. 12(b)(6); and Granting in
Part and Denying Part Defendants Gay & Robinson, Inc., Robinson
Family Partners, and Pioneer Hi-Bred International, Inc.’s Motion

1

Insofar as the two cases have been consolidated, this
Court will refer to the plaintiffs in both cases collectively as
“Plaintiffs.” When necessary, this Court will distinguish
between “the Aana Plaintiffs” and “the Casey Plaintiffs.” The
defendants are the same in both cases.
2

This Court will refer to Gay & Robinson, Inc. and Robinson
Family Partners collectively as “the Robinson Defendants.”
2

to Dismiss Plaintiffs’ Second Amended Complaint (“8/9/13 Order”);
and February 27, 2014 order Granting in Part and Denying in Part
Defendants’ Motion to Dismiss Third Amended Complaint (Rule
12(b)(6)) (“2/27/14 Order”).

[Dkt. nos. 224, 608.3]

In the instant Motion, Plaintiffs seek
a preliminary injunction: a) to enjoin Pioneer’s
use of [bee-toxic pesticides (“BTPs”)] when fields
are blooming; b) to require Pioneer to provide
independent proof that its fields are bee-free
before using BTPs as required by the label; and
c) mandate Pioneer to provide warnings to
beekeepers before using BTPs in the future as
required by Hawaii law.
[Mem. in Supp. of Motion at 2.]

In addition, they seek summary

judgment as to Count I (negligence against all Defendants for
failure to use due care) and Count II (negligence against all
Defendants for failure to investigate and warn)4 “because of
Pioneer’s systemic misuse of bee-toxic pesticides in flagrant
violation of the pesticide label and common sense farming
practices.”

[Id.]

3

The 8/9/13 Order is also available at 2013 WL 4047110, and
the 2/27/14 Order is also available at 2014 WL 806224.
4

The current pleading in these consolidated cases is
Plaintiffs’ Third Amended Complaint (Property Related Claims)
(“Third Amended Complaint”). [Filed 9/6/13 (dkt. no. 331).]
This Court has already ruled that Counts I and II, as well as
Counts IV and V (which are not at issue in the instant Motion),
are limited to the two-year period prior to the filing of the
complaints. The Aana Plaintiffs filed their original complaint
on December 13, 2011, and the Casey Plaintiffs filed their
original complaint on May 23, 2012. 2/27/14 Order, 2014 WL
806224, at *8, *10.
3

DISCUSSION
I.

Scope of the Third Amended Complaint
At the outset, this Court must address Defendants’

argument that the Third Amended Complaint does not allege any
claim for injury to bees.

As Defendants argue, [Mem. in Opp. at

16,] there is no mention of bees in Plaintiffs’ statement of
their claims, [Third Amended Complaint at ¶¶ 129-93,] and there
is only one reference to bees in Plaintiffs’ general factual
allegations.
Finally, excessive fugitive dust and dangerous
pesticides from the GMO Test Fields[5] allowed by
Pioneer and the Robinson Entities negatively
impact the local environment of Waimea, including
local corn and taro farms, local honey bee
populations, the adjacent Waimea River, and the
ocean and coral reef, which have all long predated
Pioneer’s testing of GMO crops adjacent to Waimea
on land leased from the Robinson Entities.
[Id. at ¶ 120 (emphasis added).]

Plaintiffs did not identify any

other specific references to bees.

Instead, Plaintiffs respond

that, throughout this case, they have always sought injunctive
relief to address Pioneer’s misuse of pesticides.

The Third

Amended Complaint alleges:
110) Hawaii Revised Statute 149A-31 prohibits the
use of pesticides in any manner that presents
an unreasonable adverse effect on the
environment, which includes any unreasonable
risk to humans or the environment with
5

Plaintiffs refer to “[a]ll fields leased by Pioneer from
the Robinson [Defendants] related to the Waimea Research Center”
as “the GMO Test Fields.” [Third Amended Complaint at ¶ 16.]
4

consideration for the economic, social and
environmental costs and benefits of the
pesticide’s use.
111) Waimea Residents belong to the class of
persons intended to be protected by HRS 149A31.
112) Pioneer’s intentional use of inherently
dangerous pesticides without consideration of
the risks to Waimea Residents and in
violation of State law and Pioneer’s own
stated practices and policies violates HRS
149A-2.
[Id. at ¶¶ 110-12 (footnote omitted).]

Plaintiffs emphasize that

this Court has recognized that “Plaintiffs may use evidence of
the alleged violations of the Hawai`i Pesticides Law, the Hawai`i
Air Pollution Control Act, and Ordinance 808 to support their
remaining negligence claims.”
*16.

8/9/13 Order, 2013 WL 4047110, at

Plaintiffs therefore argue that the Motion’s request for

injunctive relief is of the same character as the claims
expressly asserted in the Third Amended Complaint.
Plaintiffs clearly seek injunctive relief regarding the
allegedly improper use of pesticides:
Preliminary and permanent injunctive relief to
require Pioneer to: a) investigate the actual
risks posed by its use of inherently dangerous
pesticides for the Waimea community; b) give
warning to the Waimea Community of the risks posed
by Pioneer’s pesticides; c) enjoin Pioneer’s use
of inherently dangerous pesticides until the full
potential for harm to the Waimea community is
disclosed; and d) immediately cease all
agricultural operations at the GMO Test Fields
until and unless Pioneer complies with applicable
laws, ordinances, and policies and procedures to
cease the creation and migration of excessive
5

fugitive dust and pesticides in the Waimea
community and environment[.]
[Third Amended Complaint at pg. 38.]

The issue is whether the

Third Amended Complaint “satisfies the requirements of [Fed. R.
Civ. P.] 8(a) because it gives [Defendants] fair notice of the
basis for” Plaintiffs’ claims for bee-related damages.

See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); see also
Little v. Washington, 517 F. App’x 552 (“Rule 8 ‘is a basis for
dismissal independent of [Fed. R. Civ. P.] 12(b)(6)’” (quoting
McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996))).
In the instant Motion, Plaintiffs argue that Pioneer’s
misuse of BTPs endangers bees that forage and/or visit the GMO
Test Fields, and they assert that Counts I and II include claims
for bee-related damages.

Counts I and II do include allegations

about Pioneer’s pesticide use, but the allegations concern
pesticide drift to Plaintiffs’ homes, not harm to bees in
Pioneer’s fields during pesticide application or during postapplication periods of continued toxicity.

Count I alleges:

130) Pioneer and the Robinson Entities owe Waimea
Residents a duty to use due care to prevent
the migration of excessive fugitive dust and
dangerous pesticides into the Waimea
community and environment.
. . . .
132) Despite these duties, both Pioneer and the
Robinson Entities negligently failed to
prevent the migration of excessive fugitive
dust, erosion, and dangerous pesticides into
6

the Waimea community and environment.
133) Although Pioneer: a) received community
complaints about dust and pesticide drift;
b) had knowledge of ongoing erosion and dust
problems on the GMO Test Fields; and c) knew
of the risk posed from erosion, fugitive
dust, and dangerous pesticides to the Waimea
community and environment, Pioneer failed to
prevent the migration of pesticides and
excessive fugitive dust into the Waimea
community and environment.
. . . .
138) Pioneer and the Robinson Entities’ negligent
failure to use due care caused the routine
migration of excessive fugitive dust and
pesticides into Waimea Residents’ homes,
which has resulted in substantial impact to
the real and personal property of Waimea
Residents, regular chemical odors in the
community, an increase in health risks for
the Waimea community, and a substantial
reduction in the value and beneficial use and
enjoyment of Waimea Residents’ homes and
property.
. . . .
140) Because of the invasion of excessive fugitive
dust and pesticides into Waimea homes because
of Pioneer and the Robinson Entities’
negligence, it has been necessary for Waimea
Residents to incur expenses and other special
damages in an amount to be proven at trial.
[Third Amended Complaint at ¶¶ 130-40 (emphases added).]
Similarly, Count II alleges:
144) Despite knowledge of the hazard created by
its use of dangerous pesticides, Pioneer has
failed to investigate or warn of the risks to
the Waimea community for pesticide migration.
. . . .
7

146) Pioneer’s negligent failure to investigate,
select, warn, and use pesticides
appropriately on the GMO Test Fields, along
with the Robinson Entities’ failure to
investigate and prevent the discharge of
pollutants from the GMO Test Fields, has
caused the routine migration of pesticides
into Waimea Residents’ homes, which has
resulted in regular chemical odors in the
community, an increase in health risks for
the Waimea community, and a substantial
reduction in the value and beneficial use and
enjoyment of Waimea Residents’ homes and
property.
. . . .
149) Because of the invasion of excessive fugitive
dust and pesticides into Waimea homes because
of Pioneer and the Robinson Entities’
negligence, it has been necessary for Waimea
Residents to incur expenses and other special
damages in an amount to be proven at trial.
[Id. at ¶¶ 144-49 (emphases added).]
Both Count I and Count II incorporate the previous
paragraphs of the Third Amended Complaint.

[Id. at ¶¶ 129, 142.]

As previously noted, however, there is only one reference to bees
in the Third Amended Complaint.

Plaintiffs allege Pioneer’s

misuse of pesticides “negatively impact[s] the local environment
of Waimea, including local corn and taro farms, local honey bee
populations, the adjacent Waimea River, and the ocean and coral
reef.”

[Id. at ¶ 120.]

Even reading Counts I and II together

with paragraph 120, Plaintiffs do not give Defendants fair notice
that Counts I and II seek relief for injury to bees maintained on
any Plaintiff’s property.

It is not clear from paragraph 120
8

that any Plaintiff alleges “specific, localized injuries” related
to bees that “are fairly traceable to” Pioneer’s use of
pesticides on the GMO Test Fields, as opposed to merely alleging
general injury to the environment, which is not enough to confer
standing on Plaintiffs.

See, e.g., Wash. Envtl. Council v.

Bellon, 732 F.3d 1131, 1144 (9th Cir. 2013) (“[T]he critical
inquiry for standing purposes is whether the [defendants’]
alleged misconduct causes injury to Plaintiffs.

Injury to the

environment alone is not enough to satisfy the causation prong
for standing.” (citation omitted)).
This Court therefore finds that the Third Amended
Complaint does not allege a claim specifically for injury to bees
maintained on any Plaintiff’s property.

Thus, Plaintiffs are not

entitled to summary judgment on any issues regarding bee-related
injuries, nor can this Court issue a preliminary injunction as to
claims that are not alleged in the Third Amended Complaint.

Cf.

Davis v. Abercrombie, 903 F. Supp. 2d 975, 995 (D. Hawai`i 2012)
(“A preliminary injunction may be granted only when the
‘intermediate relief [is] of the same character as that which may
be granted finally.’” (alteration in Davis) (some citations and
quotation marks omitted) (quoting De Beers Consol. Mines v. U.S.,
325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566 (1945))).
Court therefore DENIES Plaintiffs’ Motion.

This Court, however,

will address the merits of the Motion for the sake of

9

This

completeness.
II.

Merits of the Motion
Even if this Court found that the Third Amended

Complaint does allege claims for bee-related injuries, this Court
would still deny Plaintiffs’ Motion.
A.

Standing
First, this Court would find that only Plaintiff Allen

Arquette (“A. Arquette”) and Plaintiffs Wolfgang Langlois
(“W. Langlois”) and Lisette Langlois (“the Langloises”) have
standing to pursue the claims for bee-related injuries.
Article III of the United States Constitution
limits the power of the courts to the resolution
of actual “Cases” and “Controversies.” U.S.
Const., art. III, § 2; Valley Forge Christian
Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70
L. Ed. 2d 700 (1982). “[T]he irreducible
constitutional minimum of standing contains three
elements”: (1) injury in fact, (2) causation, and
(3) redressability. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130,
119 L. Ed. 2d 351 (1992). Thus, the party seeking
to establish standing must show the “actual or
imminent” “invasion of a legally protected
interest” that is “fairly traceable to the
challenged action” and is “likely . . . to be
redressed by a favorable decision.” Id. at
560–61, 112 S. Ct. 2130 (emphasis added)
(alterations, citations, and quotation marks
omitted). The party seeking to establish
jurisdiction . . . bears the burden of
demonstrating standing. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 & n.3, 126 S. Ct. 1854,
164 L. Ed. 2d 589 (2006); Lujan, 504 U.S. at 561,
112 S. Ct. 2130. . . .
Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733
10

F.3d 939, 969-70 (9th Cir. 2013) (some alterations in Bonneville
Power).
Plaintiffs have only presented evidence that
A. Arquette and the Langloises arguably have legally protected
interests in bees maintained on their respective properties.
A. Arquette states that he has fifteen bee hives on a property
adjacent to his residence, which is approximately 200 yards away
from Pioneer’s fields.

[Motion, Decl. of Kyle Smith (“Smith

Decl.”), Exh. 46 (Aff. of Allen J. Arquette (“A. Arquette Aff.”))
at ¶¶ 4-5.7]

W. Langlois states that he and his wife “assist

with the maintenance of a bee hive on [their] property which is
located about 400 yards from the [sic] Pioneer’s Waimea test
fields.”

[Smith Decl., Exh. 4 (Aff. of Wolfgang Langlois

(“Langlois Aff.”)) at ¶ 5.]

Plaintiffs contend that the alleged

6

Plaintiffs did not file the Smith Declaration and their
Concise Statement of Undisputed Facts (“Plaintiffs’ CSOF”) as a
separate document. Those two documents appear as part of the
Motion, immediately following the memorandum in support.
Exhibit 4 to the Smith Declaration consists of both the Affidavit
of Allen J. Arquette and the Affidavit of Wolfgang Langlois.
7

A. Arquette’s wife, Susan Arquette (“S. Arquette”), is
also among the Aana Plaintiffs, but Plaintiffs did not present
evidence that she has a legally protected interest in her
husband’s beekeeping activities. See A. Arquette Aff. at ¶ 4 (“I
raise bees”); id. at ¶ 5 (“I currently have 15 hives”); Smith
Decl., Exh. 18 (Excerpts of Trans. of 1/24/13 Depo. of Susan
Arquette) at 76-78 (discussing decrease in bees and fewer
pollinating insects for their trees). Exhibit 18 does not
indicate that S. Arquette is a beekeeper or has any ownership
interest in the hives that A. Arquette discusses in his
affidavit.
11

injuries to A. Arquette’s and the Langloises’s bees are fairly
traceable to Pioneer’s use of pesticides and that the alleged
injuries are likely to be redressed by a decision in Plaintiffs’
favor in this action.
The Motion states that Plaintiff John Aana (“J. Aana”)
is also a beekeeper, [Mem. in Supp. of Motion at 22-23,] but the
supporting documentation states that J. Aana is a taro farmer,
and does not state that he is a beekeeper.

[Smith Decl., Exh. 20

(Pltf. J. Aana’s Suppl. Damages Response to Defs.’ First Request
for Answers to Interrogs. & First Request for Production of Docs
Dated 6/1/12) at 2.]

Thus, even if this Court found that the

Third Amended Complaint alleged claims for bee-related injuries,
this Court would find that only A. Arquette and the Langloises
have standing to pursue those claims.
B.

Summary Judgment
The two counts which Plaintiffs address in the Motion

are both negligence claims.

[Mem. in Supp. of Motion at 28

(requesting “partial summary judgment that: a) a duty to use due
care and duty to warn exist in Hawaii for the use of pesticides;
and b) that Pioneer has breached its duty to use due care and
duty to warn.”).]

Plaintiffs’ counsel acknowledged at the

hearing on the Motion that Plaintiffs have not addressed
causation and damages.

Plaintiffs’ Reply also effectively

conceded that there are genuine issues of material fact as to

12

causation and damages.

[Reply at 13 (asking this Court to: defer

ruling on the Motion, pending Defendants’ production of
pollenation records; grant partial summary judgment on the
existence of a duty to warn; and grant partial summary judgment
on duty and breach of duty as to the use of the pesticide
Sevin).]
Causation and damages are essential elements of a
negligence claim under Hawai`i law.

See Cho v. Hawai`i, 115

Hawai`i 373, 379 n.11, 168 P.3d 17, 23 n.11 (2007) (“It is
well-established that, in order for a plaintiff to prevail on a
negligence claim, the plaintiff is required to prove all four of
the necessary elements of negligence: (1) duty; (2) breach of
duty; (3) causation; and (4) damages.”).

Plaintiffs’ only

evidence of bee-related injury is A. Arquette’s statement that he
lost three bee hives to colony collapse over a seven-year period.
[A. Arquette Decl. at ¶ 7.]

The only evidence to establish a

causal link between his losses and Pioneer’s use of pesticides is
his declaration stating that: “In addition to the colony collapse
I experienced at my hives, I have personally noticed over the
past 7 years a general, and to me an alarming decline, in
foraging bees in Waimea, a large part of which, I attribute to
the application of toxic pesticides used by Pioneer.”
¶ 14.]

[Id. at

The Langloises do not allege damages to the bees they

maintain, but W. Langlois also asserts that there has been a

13

decrease in the number of foraging bees in Waimea over the past
seven years, which he attributes to Pioneer’s pesticide use.
Langlois Decl. at ¶ 13.]

[W.

Plaintiffs submitted declarations by

two of their retained experts, Michael J. DiBartolomeis, Jr.,
Ph.D., DABT, and Hector Valenzuela, Ph.D., [Smith Decl., Exhs.
10, 15,] but the declarations do not address the effect of
pesticides on A. Arquette’s or the Langloises’s hives.
Defendants presented the declaration of one of their
expert witnesses, Mark Wright, Ph.D., stating that “[h]oneybee
colony collapse disorder (CCD) is a worldwide phenomenon,” but
whether insecticides play a role in CCD is still an open
question.
¶ 14.8]

[Defs.’ CSOF, Decl. of Mark Wright (“Wright Decl.”) at

His department at the University of Hawai`i is actively

studying this issue.

[Id.]

14. . . . CCD does not occur in Hawaii.
Honeybees in Hawaii are currently severely
impacted by small hive beetles and Nosema. These
bee pests can severely reduce the viability of, or
destroy hives, but do not cause CCD in Hawaii.
15. The small hive beetle feeds on anything
inside the hive, causing damage to the honeycomb
and contaminating the honey, and ultimately
completely destroying the colony. The small hive
beetle has been known to be present on Kauai since
2012. See Exhibit C (attached hereto) (Press
Release from Hawaii Department of Agriculture) and
Exhibit D (attached hereto) (New Pest Advisory).

8

Dr. Wright is the Chair of the Department of Plant and
Environmental Protection Science, which includes entomology (the
study of insects), at the University of Hawai`i. [Wright Decl.
at ¶ 1, Exh. A (Curriculum Vitae - Mark Gerald Wright).]
14

Nosema, a fungal parasite that hinders honeybee
digestion and shortens lifespan, may also
contribute to any decline in local bee
populations. Nosema has been identified in hives
on Kauai.
[Id. at ¶¶ 14-15.]

Dr. Wright also states that failure to

inspect hives for infestations and failure to respond
appropriately to any infestation discovered will cause pests and
disease to spread rapidly.

[Id. at ¶ 16.]

The Hawai`i State Legislature, recognizing the threat
to the local beekeeping industry, passed Act 200 in 2011.

Act

200 created a beekeepers’ registry with, and established an
apiary program within, the Department of Agriculture.
Sess. Laws Act 200, §§ 2-3 at 661-62.

2011 Haw.

Section 1 of Act 200

states, in pertinent part:
The legislature finds that Hawaii’s beekeepers are
experiencing devastating losses in their industry
due to a combination of bad weather and the
infestation of varroa mites, nosema spores, and
small hive beetles. Unofficial counts indicate
that thousands of bee colonies in Hawaii have died
off, but the exact numbers remain unknown. . . .
Id., § 1 at 661.

Act 200 neither finds nor suggests that

agricultural pesticides, or any other chemicals, are a cause of
the decline in the local bee population.

Defendants also offer

Dr. Wright’s declaration, stating that, “in 2013 pollen samples
were taken from bee hives across Hawaii and tested for 172
different pesticides.

The samples from hives in Kauai were found

to be completely pesticide free.”

15

[Wright Decl. at ¶ 18 (citing

Wright Decl., Exh. F (Hawai`i Apiary Program Hawai`i Bee
newsletter, Summer 2013)).]
This Court therefore finds that there are genuine
issues of material fact as to the causation and damages elements
of Count I and Count II, particularly in light of the fact this
Court must view the current record in the light most favorable to
Defendants.

See Crowley v. Bannister, 734 F.3d 967, 976 (9th

Cir. 2013) (“We review a grant of summary judgment de novo and
must determine, viewing the facts in the light most favorable to
the nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.” (citations and quotation marks
omitted)).

Insofar as these are required elements of Plaintiffs’

negligence claims, this Court concludes that Plaintiffs are not
entitled to summary judgment as to either Count I or Count II.
See Fed. R. Civ. P. 56(a) (stating that a party is entitled to
summary judgment “if 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”).
As previously noted, Plaintiffs’ Reply amends the
request for summary judgment in the Motion and asks this Court to
grant summary judgment as to only the issues of: whether Pioneer
had a duty to warn about their pesticide use in general; whether
Pioneer had a duty to warn about their use of Sevin; and whether

16

Pioneer breached its duty to warn as to its use of Sevin.

This

Court would find that there are genuine issues of material fact
as to these issues as well, including whether it was reasonably
foreseeable to Pioneer that there were bee hives being maintained
on A. Arquette’s and the Langloises’s properties.

Cf. Kajiya v.

Dep’t of Water Supply, 2 Haw. App. 221, 226, 629 P.2d 635, 640
(1981) (“When one is in control of what he knows or should know
is a dangerous agency, which creates a foreseeable peril to
persons or property that is not readily apparent to those
endangered, to the extent that it is reasonably possible, one
owes a duty to warn them of such potential danger.”).

Plaintiffs

have not presented evidence that either A. Arquette or the
Langloises informed Pioneer of their beekeeping activities, and
Defendants presented testimony that they did not do so.

[Defs.’

Separate and Concise Statement of Facts in Supp. of Defs.’ Mem.
in Opp., filed 6/2/14 (dkt. no. 753) (“Defs.’ CSOF”), Decl. of
Joao Kopytowski Filho (“Kopytowski Decl.”) at ¶ 21.]

Joao

Kopytowski Filho, Ph.D.,9 states: “the Hawaii Beekeepers’
Association maintains an online membership . . . .

Neither

Mr. Arquette nor Mr. Langlois is listed as a member.
there are no members from Waimea as of 2012.”

In fact,

[Id. at ¶ 23.]

The State did not have a beekeepers’ registry until Act 200

9

Dr. Kopytowski is a research scientist at the Waimea
Research Center, and he oversees the Agronomy Department.
[Kopytowski Decl. at ¶ 3.]
17

established one.
Thus, even if this Court found that the Third Amended
Complaint alleged claims for bee-related injuries, this Court
would find that there are genuine issues of material fact as to
all elements of Plaintiffs’ negligence claims in Count I and
Count II, and this Court would DENY the Motion’s request for
summary judgment as to Count I and Count II.
C.

Preliminary Injunction
As to Plaintiffs’ request for a preliminary injunction

regarding Pioneer’s use of BTPs, the applicable standard is:
“[I]njunctive relief is an extraordinary
remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to
such relief.” Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 376 (2008).
The standard for granting a preliminary
injunction and the standard for granting a
temporary restraining order are identical.
See Haw. Cnty. Green Party v. Clinton, 980 F.
Supp. 1160, 1164 (D. Haw. 1997); Fed. R. Civ.
P. 65.
Sakala v. BAC Home Loans Servicing, LP, CV. No.
10-00578 DAE-LEK, 2011 WL 719482, at *4 (D.
Hawai`i Feb. 22, 2011) (alteration in original).
A plaintiff seeking a preliminary
injunction must establish that he is likely
to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of
preliminary relief, that the balance of
equities tips in his favor, and that an
injunction is in the public interest. Am.
Trucking Ass’ns v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009) (quoting
Winter v. Natural Res. Def. Council, Inc.,
--- U.S. ----, 129 S. Ct. 365, 374, 172 L.
Ed. 2d 249 (2008)) (explaining that, “[t]o
18

the extent that [the Ninth Circuit’s] cases
have suggested a lesser standard, they are no
longer controlling, or even viable” (footnote
omitted)); see also Winter, 129 S. Ct. at
374-76 (holding that, even where a likelihood
of success on the merits is established, a
mere “possibility” of irreparable injury is
insufficient to warrant preliminary
injunctive relief, because “[i]ssuing a
preliminary injunction based only on a
possibility of irreparable harm is
inconsistent with [the Supreme Court’s]
characterization of injunctive relief as an
extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is
entitled to such relief”).
Painsolvers, Inc. v. State Farm Mut. Auto. Ins.
Co., 685 F. Supp. 2d 1123, 1128-29 (D. Hawai`i
2010) (footnote and some citations omitted)
(alterations in original). The Ninth Circuit has
held that its “serious questions” version of the
sliding scale test for preliminary injunctions
survives Winter to the extent that, a court may
grant a preliminary injunction where the plaintiff
(1) “demonstrates . . . that serious questions
going to the merits were raised and the balance of
hardships tips sharply in the plaintiff’s
favor[,]” and (2) satisfies the other Winter
factors, likelihood of irreparable injury and that
the injunction is in the public interest.
Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134-35 (9th Cir. 2011) (citation and
block quote format omitted) (some alterations in
original).
Hunger v. Univ. of Hawai`i, 927 F. Supp. 2d 1007, 1015-16 (D.
Hawai`i 2013) (some citations omitted).10

10

The Ninth Circuit has stated the sliding scale test as
follows:
“A preliminary injunction is appropriate when
a plaintiff demonstrates ‘either: (1) a likelihood
of success on the merits and the possibility of
(continued...)
19

For the same reasons set forth supra in Discussion
section II.B., this Court would also find that Plaintiffs have
not established either a likelihood of success on the merits of
their claims for bee-related injuries or that there are serious
questions going to the merits of those claims.

This Court

therefore need not address the remaining factors.

Even if this

Court found that the Third Amended Complaint alleged claims for
bee-related injuries, this Court would find that Plaintiffs have
not established that they are entitled to a preliminary
injunction.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Preliminary Injunction and Partial Summary Judgment for DuPont

10

(...continued)
irreparable injury; or (2) that serious questions
going to the merits were raised and the balance of
hardships tips sharply in [the plaintiff’s]
favor.’” Lands Council v. Martin (Lands Council
II), 479 F.3d 636, 639 (9th Cir. 2007) (quoting
Clear Channel Outdoor Inc. v. City of Los Angeles,
340 F.3d 810, 813 (9th Cir. 2003)). These two
options represent extremes on a single continuum:
“the less certain the district court is of the
likelihood of success on the merits, the more
plaintiffs must convince the district court that
the public interest and balance of hardships tip
in their favor.” Id.

Lands Council v. McNair, 537 F.3d 981, 987 (9th. Cir. 2008) (en
banc) (some citations and internal quotation marks omitted)
(alteration in Lands Council).
20

Pioneer’s Misuse of Bee-Toxic Pesticides, filed April 8, 2014, is
HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, June 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JIM AANA, ET AL. ETC. VS. PIONEER HI-BRED INTERNATIONAL, INC., ET
AL; CIVIL 12-00231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER HIBRED INTERNATIONAL, INC., ET AL; CIVIL 12-00655 LEK-BMK; ORDER
DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND PARTIAL
SUMMARY JUDGMENT FOR DUPONT PIONEER’S MISUSE OF BEE-TOXIC
PESTICIDES

21