Hawaii Floriculture And Nursery Association v. County of Hawaii

Filing 50

ORDER DENYING MOTION FOR INTERVENTION; ORDER AMENDING BRIEFING SCHEDULE FOR PENDING MOTION FOR SUMMARY JUDGMENT re 34 Motion to Intervene. Signed by Judge BARRY M. KURREN on 08/22/2014. The Court grants Proposed Intervenors amicus status. The Court amends the briefing schedule for the pending Motion for Summary Judgment: Defendant and Amici Curiae may file one opposition memorandum each, no later than September 18, 2014; Plaintiffs may file a reply memo randum no later than October 9, 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

HAWAI`I FLORICULTURE AND
)
NURSERY ASSOCIATION, ET AL., )
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF HAWAI`I,
)
)
Defendant.
)
______________________________ )

CIV. NO. 14-00267 BMK

ORDER DENYING MOTION FOR
INTERVENTION; ORDER
AMENDING BRIEFING
SCHEDULE FOR PENDING
MOTION FOR SUMMARY
JUDGMENT

ORDER DENYING MOTION FOR INTERVENTION;
ORDER AMENDING BRIEFING SCHEDULE FOR
PENDING MOTION FOR SUMMARY JUDGMENT
Before the Court is Proposed Intervenors’ Motion for Leave to
Intervene on Behalf of Defendant (Doc. 34).1 After careful consideration of the
Motion and the supporting and opposing memoranda, the Court DENIES the request
to intervene. However, the Court allows Proposed Intervenors to participate as
amici curiae; they may file a combined brief opposing Plaintiffs’2 pending Motion
for Summary Judgment on Claims One and Two (Doc. 28), and they may participate

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Proposed Intervenors are Center for Food Safety, Nancy Redfeather, Marilyn Howe, and Rachel
Laderman.
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Plaintiffs are Hawaii Floriculture and Nursery Association, Hawaii Papaya Industry Association,
Big Island Banana Growers Association, Hawaii Cattlemen’s Council, Inc., Pacific Floral
Exchange, Inc., Biotechnology Industry Organization, Richard Ha, Jason Moniz, Gordon Inouye,
and Eric Tanouye.

in oral argument with Defendant County of Hawaii at the October 23, 2014 hearing
on that Motion. As further relief, the Court amends the briefing schedule for the
pending Motion for Summary Judgment: Defendant and Amici Curiae may file
one opposition memorandum each, no later than September 18, 2014; Plaintiffs may
file a reply memorandum no later than October 9, 2014.
Proposed Intervenors seek intervention as of right or, alternatively,
permissive intervention. When analyzing a motion to intervene as of right under
Federal Rules of Civil Procedure Rule 24(a)(2), courts apply a four-part test:
(1) the motion must be timely; (2) the applicant must
claim a “significantly protectable” interest relating to the
property or transaction which is the subject of the action;
(3) the applicant must be so situated that the disposition of
the action may as a practical matter impair or impede its
ability to protect that interest; and (4) the applicant’s
interest must be inadequately represented by the parties to
the action.
Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011).
Regarding adequate representation by a party, “[w]here the party
and the proposed intervenor share the same ‘ultimate objective,’ a presumption of
adequacy of representation applies.” Freedom from Religion Found., Inc. v.
Geithner, 644 F.3d 836, 841 (9th Cir. 2011). “Such presumption can be rebutted
only by “a compelling showing to the contrary.’” Id. Further, where “the
government is acting on behalf of a constituency that it represents,” rebuttal of the
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presumption of adequate representation requires a “very compelling showing to the
contrary.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).
In the present case, both Defendant and Proposed Intervenors share the
ultimate objective of ensuring that the Ordinance is valid and enforceable.
Therefore the presumption of adequate representation applies, and because
Defendant represents its constituents, any rebuttal must be “very compelling.” See
Freedom from Religion Found., Inc., 644 F.3d at 841; Arakaki, 324 F.3d at 1086.
Proposed Intervenors argue that their interests differ from and are more personal that
Defendant’s, but that does not necessarily mean Defendant will inadequately
represent those interests. Further, Proposed Intervenors contend that they may
present different arguments than Defendant and will offer “unique elements” and
“expertise” to the present litigation. However, by granting Proposed Intervenors
amicus status, they may present those arguments, elements, and expertise to the
Court in their own briefing and argument.
Moreover, the posture of this case differs significantly from Syngenta
v. County of Kauai, CV. NO. 14-00014 BMK, where the Court found the county
might not adequately represent the intervenors’ interests. In that case, the
ordinance was not yet in effect, the mayor had vetoed the challenged ordinance, and
the County had budgetary constraints for securing legal representation. In this case,

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the Ordinance is in full effect, the mayor supported the bill without any veto, and
there is no evidence that Defendant lacks the financial resources to defend the law.
Accordingly, the Court finds that Proposed Intervenors’ interests will be adequately
represented by Defendant and the fourth factor of intervention as of right is not met.
The Court therefore denies the request for intervention as of right.
Proposed Intervenors alternatively seek permissive intervention.
Permissive intervention under FRCP Rule 24(b) requires “(1) an independent
ground for jurisdiction; (2) a timely motion; and (3) a common question of law and
fact between the movant’s claim or defense and the main action.” Blum v. Merrill
Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013). Unlike
intervention as of right, “even if all three requirements are satisfied, the district court
has discretion to deny permissive intervention.” SEC v. Small Bus. Capital Corp.,
Civ. No. 5:12-03237 EJD, 2014 WL 3749900, at *2 (N.D. Cal. June 29, 2014). In
the Court’s discretion, it denies the request for permissive intervention. Because
the ordinance is in full effect and Plaintiffs’ motion for summary judgment is
pending and set for hearing, the Court instead grants Proposed Intervenors amicus
status. They may file a brief in opposition to Plaintiffs’ pending motion and they
may participate in oral argument with Defendant.

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As further relief, the Court amends the briefing schedule for the
pending Motion for Summary Judgment: Defendant and Amici Curiae may file
one opposition memorandum each, no later than September 18, 2014; Plaintiffs may
file a reply memorandum no later than October 9, 2014.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 22, 2014.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Hawaii Floriculture and Nursery Ass’n, et al. v. County of Hawaii, CIV. NO. 14-00267 BMK;
ORDER DENYING MOTION FOR INTERVENTION; ORDER AMENDING BRIEFING
SCHEDULE FOR PENDING MOTION FOR SUMMARY JUDGMENT.

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