Friends of Maha`ulepu v. Hawai`i Dairy Farms
Filing
235
ORDER DENYING: (1) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; (2) PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON LIABILITY; AND (3) PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO FILE SUPPLEMENTAL DECLARATIONS IN SUPPORT OF REPLY TO MOTION FOR PAR TIAL SUMMARY JUDGMENT re 41 Motion for Summary Judgment re 107 Motion for Partial Summary Judgment re 215 Motion for Leave to File re 221 Motion for Leave to File. Signed by JUDGE LESLIE E. KOBAYASHI on 12/01/201 6. (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
FRIENDS OF MAHA`ULEPU, INC.,
a Hawai`i non-profit
corporation,
)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
HAWAI`I DAIRY FARMS, LLC, a
Delaware Limited Liability
)
Company; ULUPONO INITIATIVE, )
)
LLC; a Delaware Limited
Liability Company; MAHA`ULEPU )
)
FARMS, LLC; a Delaware
)
Limited Liability Company,
)
)
Defendants.
_____________________________ )
CIVIL 15-00205 LEK-BMK
ORDER DENYING: (1) DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; (2) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
ON LIABILITY; AND (3) PLAINTIFF’S EX PARTE MOTION FOR
LEAVE TO FILE SUPPLEMENTAL DECLARATIONS IN SUPPORT
OF REPLY TO MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court are:
Defendants Hawai`i Dairy Farms,
LLC (“Hawai`i Dairy”), Ulupono Initiative, LLC (“Ulupono”), and
Maha`ulepu Farm LLC’s (“Maha`ulepu,” collectively “Defendants”)
Motion for Summary Judgment (“Defendants’ Summary Judgment
Motion”), filed on November 25, 2015;1 and Plaintiff Friends of
1
Defendants’ Motion for Summary Judgment was originally set
for hearing on February 16, 2016. However, on January 4, 2016,
Plaintiff filed a Fed. R. Civ. P. 56(d) Motion to Defer
Consideration of Defendants’ Motion for Summary Judgment (ECF No.
41) (“Rule 56(d) Motion”), which the Court granted on February
29, 2016. [Dkt. nos. 68 (Rule 56(d) Motion), 89 (order granting
Rule 56(d) Motion).]
Maha`ulepu’s (“Friends” or “Plaintiff”) Motion for Partial
Summary Judgment on Liability (“Plaintiff’s Summary Judgment
Motion”), filed on July 1, 2016.2
[Dkt. nos. 41, 107.]
On
September 1, 2016, Defendants filed their Combined Opposition to
(ECF 107) Plaintiff’s Motion for Partial Summary Judgment and
Reply in Support of (ECF 41) Defendants’ Motion for Summary
Judgment [Local Rule 7.9] (“Defendants’ Combined Memorandum”).
[Dkt. no. 214.]
The same day, Plaintiff filed its reply
(“Plaintiff’s Reply”).3
[Dkt. no. 218.]
Defendant’s Summary
Judgment Motion and Plaintiff’s Summary Judgment Motion
(collectively “Summary Judgment Motions”) came on for hearing on
September 12, 2016.
Also before the Court is Plaintiff’s Ex
Parte Motion for Leave to File Supplemental Declarations in
2
Plaintiff’s Summary Judgment Motion includes a Memorandum
of Points and Authorities in Support of its Motion for Partial
Summary Judgment on Liability and Opposition to Defendants’
Motion for Summary Judgment (ECF No. 41) (“Plaintiff’s Combined
Memorandum”).
3
Both parties had a very difficult time complying with the
Local Rules and using this district court’s electronic case
filing system. In an Entering Order filed on August 25, 2016,
the Court deemed many of the incorrectly filed documents
withdrawn without prejudice. [Dkt. no. 159.] In an Entering
Order filed on August 29, 2016, after the parties again filed
documents incorrectly, the Court struck a number of documents
from the record. [Dkt. no. 204.] At a status conference on
August 31, 2016, the Court granted the parties leave to re-file
certain documents. [Minutes, filed 8/31/16 (dkt. no. 211).]
While the Court is confident that it has sufficiently addressed
this matter, the parties are warned that, in the future, any
filings in violation of the Local Rules will not be accepted.
Further, the Court may consider revoking the pro hac vice status
of the offending party.
2
Support of Reply to Motion for Partial Summary Judgment (ECF No.
107) (“Motion for Leave”), filed on September 1, 2016.
nos. 215, 221.4]
[Dkt.
The Court finds the Motion for Leave suitable
for disposition without a hearing pursuant to Rule 7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
After careful
consideration of the motions, memoranda, and the relevant legal
authority, Defendants’ Summary Judgment Motion, Plaintiff’s
Summary Judgment Motion, and the Motion for Leave are all DENIED
for the reasons set forth below.
BACKGROUND
On June 1, 2015, Plaintiff filed its Complaint.
no. 1.]
[Dkt.
The Complaint seeks declaratory and injunctive relief,
as well as civil penalties against Defendants for violations of
the Federal Water Pollution Control Act (“Clean Water Act”), 33
U.S.C. § 1251, et seq.
[Complaint at ¶ 1.]
Specifically,
Plaintiff states that it brings the instant suit under 33 U.S.C.
§ 1365(a)(1)(A).
Plaintiff complied with the notice requirements
of the Clean Water Act.
[Id. ¶ at 10.]
Plaintiff submits that Hawai`i Dairy has plans for a
699-cow dairy farm in Maha`ulepu, Kaua`i, with the goal of
gradually increasing that number to 2,000 cows (“Project Site”).
4
After reviewing the documents closely, it is clear to the
Court that docket number 221 is a continuation of docket number
215.
3
[Id. at ¶ 34.]
Plaintiff alleges that Defendants “have engaged
and continue to engage in construction and construction support
activities,” and have been doing so since early 2014 (possibly as
early as January 2014).5
[Id. at ¶¶ 36-37.]
On September 9,
2014, Hawai`i Dairy submitted a Notice of Intent (“NOI”) to the
State of Hawai`i, Department of Health (“DOH”), indicating its
plan to operate under a National Pollutant Discharge Elimination
System (“NPDES”) permit.
DOH did not approve the permit.
Hawai`i Dairy reapplied on May 7, 2015, but the application is
still pending.
[Id. at ¶¶ 38-39.]
Hawai`i Dairy therefore does
not have an NPDES permit.
According to Plaintiff, because the proposed dairy farm
is uncovered, any precipitation will cause “unpermitted
stormwater runoff” that contains pollutants from the
construction.
5
[Id. at ¶ 44.]
Sources of these pollutants
According to Plaintiff, these activities include
removal of Guinea grass and other “grubbing”
activities to make the ground suitable for
planting of non-native Kikuyu grass; installation
of irrigation systems and associated piping, some
of which may be underground; construction and inground installation of concrete watering troughs,
including associated piping; digging of an
effluent pond to store manure generated by the
dairy herd; installation of monitoring wells; road
improvements; and the staging of materials and
equipment to accomplish the above and other
activities.
[Complaint at ¶ 36.]
4
allegedly include “roadways, raceways, concrete troughs, concrete
and compacted limestone platforms for troughs, irrigation pipe
installation, wells, and other items, machinery and construction
materials stored on the [Project] Site, any vehicles driving on
and off the [Project] Site, and others.”
[Id. at ¶ 45.]
The
pollutants themselves include “dirt, debris, sewage sludge from
land applications, biological materials, rock, sand, or other
materials.”
[Id. at ¶ 46.]
Plaintiffs assert that the alleged
construction activity at the Project Site has resulted in
stormwater runoff entering navigable waters, including “a series
of ancient agricultural ditches,” the Wai`opili Stream and, a
short distance thereafter, the Pacific Ocean.
[Id. at ¶ 47.]
Moreover, Plaintiff contends that the alleged construction has
affected the water quality in Wai`opili Stream.
[Id. at ¶ 49.]
Plaintiff brings two claims for relief:
(1) unauthorized discharge of construction pollutants into waters
of the United States, in violation of 33 U.S.C. § 1311(a)
(“Count I”); [id. at ¶¶ 52-57;] and (2) failure to obtain permit
coverage for storm water discharges, in violation of 33 U.S.C.
§ 1342 (“Count II”) [id. at ¶¶ 58-61].
Plaintiff requests:
a
declaration that Defendants have violated and continue to violate
§ 1311(a); a declaration that Defendants have violated and
continue to violate § 1342; an order enjoining Defendants from
any further storm water discharge containing “construction
5
related pollutants” unless authorized by the relevant permit; an
order that Defendants must immediately comply with the permit
requirements; an order that Defendants must pay $37,500 a day,
per violation, for violations of the Clean Water Act, pursuant to
33 U.S.C. §§ 1319(d), 1365(a) and 40 C.F.R. §§ 19.1.-19.4; an
order that Defendants must remediate any harm caused by their
violations; an order that Defendants must pay all of Plaintiff’s
attorneys’ and expert witness fees, as well as costs, pursuant to
33 U.S.C. § 1365(d); and “any such other relief as the Court may
deem just and proper.”
[Complaint, Prayer for Relief ¶¶ A-H.]
DISCUSSION
I.
Preliminary Matters
A.
Motions for Judicial Notice
1.
First Request for Judicial Notice
On December 2, 2016, Defendants filed a Request for
Judicial Notice in Support of Motion for Summary Judgment (“First
Request for Judicial Notice”).
[Dkt. no. 53.6]
Defendants
request judicial notice of the Complaint as well as “[t]he
pleadings and papers filed in the above-entitled case.”7
Request for Judicial Notice at 2.]
[First
This district court has
6
On December 3, 2015, Defendants filed the First Request
for Judicial Notice a second time. [Dkt. no. 55.] The Court
therefore deems docket number 55 withdrawn.
7
Defendants state that the Complaint is attached as
Exhibit A, but the attachment is actually Defendants’ Answer to
Complaint. See First Request for Judicial Notice, Exh. A.
6
stated:
The court may “take judicial notice of
‘matters of public record[,]’” as long as the
facts noticed are not “subject to reasonable
dispute.” Intri-Plex Techs., Inc. v. Crest Grp.,
Inc., 499 F.3d 1048, 1052 (9th Cir. 2007).
However, the court may not take judicial notice of
a matter of public record in order to consider
“the truth of the facts recited therein.” See id.
at 690. The court may only take judicial notice
of the existence of the matter. See id. (citing
S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3d Cir.
1999)).
Matters of public record that may be
judicially noticed include records and reports of
administrative bodies, see Barron v. Reich, 13
F.3d 1370, 1377 (9th Cir. 1994), and documents
filed with courts, “both within and without the
federal judicial system, if those proceedings have
a direct relation to the matters at issue.”
United States v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992). The court may also take judicial
notice of records of government agencies. See
Dent v. Holder, 627 F.3d 365, 371-72 (9th Cir.
2010) (taking judicial notice of agency records).
Bartolotti v. Maui Mem’l Med. Ctr., Civil No. 14-00549 SOM/KSC,
2015 WL 4545818, at *3 (D. Hawai`i July 28, 2015).
The First
Request for Judicial Notice pertains to court documents, and the
Court therefore GRANTS the request.
The Court, however, notes
that it is only taking judicial notice of the documents’
existence.
2.
Second Motion for Judicial Notice
On September 1, 2016, Defendants filed a Request for
Judicial Notice in Support of (214) Defendants’ Opposition to
7
(ECF 107) Plaintiff’s Motion for Partial Summary Judgment
(“Second Request for Judicial Notice”).
Defendants request judicial notice of:
[Dkt. no. 216.]
(1) the DOH Clean Water
Branch’s (“Clean Water Branch”) “Waiopili Ditch Sanitary Survey,
Kauai Part I,” published March 2016 (“DOH Sanitary Survey”);
[Second Request for Judicial Notice, Exh. A;] (2) the Clean Water
Branch’s instructions on “Forms to be used in E-Permitting Portal
for the National Pollution Discharge Elimination System (NPDES)
Program” (“NPDES Forms”); [id., Exh. B;] and (3) a letter from
then-Acting Director of the United States Environmental
Protection Agency (“EPA”) James F. Pendergast to “Water Division
Directors, Regions 1-10,” dated February 5, 1998 (“2/5/1998
Pendergast Letter”) [id., Exh. C].
For the same reasons and on
the same limited basis the Court granted the First Request for
Judicial Notice, the Court GRANTS the Second Request for Judicial
Notice.
B.
Evidentiary Objections
On September 1, 2016, Defendants filed Evidentiary
Objections to Portions of Declarations of (ECF 110) David J.
Erickson, (ECF 111) Bridget Hammerquist, (ECF 113) Eileen
Kechloian, (ECF 114) Llewelyn “Billy” Kaoheulauli`i,8 and (ECF
115) Alan E. Faye, Jr. in Support of Plaintiff’s Motion for
Partial Summary Judgment (107) (“Evidentiary Objections”).
8
This appears to be a misspelling of Kaohelauli`i.
8
[Dkt.
no. 220.]
Bridget Hammerquist (“Hammerquist”), Eileen Kechloian
(“Kechloian”), Billy Kaohelauli`i (“Kaohelauli`i”), and Alan E.
Faye, Jr. (“Faye”) are all members of Friends of Maha`ulepu.
See
Decl. of Bridget Hammerquist (“Hammerquist Decl.”), filed 7/1/16
(dkt. no. 111), at ¶ 7 (“I now serve as President, and am cofounder of, Friends of Maha`ulepu, Inc.”); Decl. of Eileen
Kechloian (“Kechloian Decl.”), filed 7/1/16 (dkt. no. 113), at
¶ 4 (“I am director and co-founder of Friends of Maha`ulepu,
Inc.”); Decl. of Llewelyn “Billy” Kaohelauli`I (“Kaohelauli`I
Decl.”), filed 7/1/16 (dkt. no. 114), at ¶ 5 (“As Friends of
Maha`ulepu shares my interest in protecting and preserving the
natural resources of Maha`ulepu, I became a member of Friends in
about October 2014.”); Decl. of Alan E. Fayé Jr. (“Fayé Decl.”),
filed 7/1/16 (dkt. no. 115), at ¶ 8 (“I became a member of
Friends in June 2015”).9
Fed. R. Civ. P. 56(c)(4) states, in relevant part,
“[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
9
At the hearing,
All of the documents in support of Plaintiff’s Summary
Judgment Motion and Defendants’ Summary Judgment Motion are
incorrectly filed. See Local Rule LR100.2.5 (“Each exhibit
referenced in a document shall be submitted as a separate CM/ECF
attachment to the main document”). For the sake of clarity, the
Court will refer to the documents as filed.
9
Plaintiff represented that all of the aforementioned declarations
were offered for the purpose of establishing Plaintiff’s
standing.
The declarations are appropriate for this purpose.
If
offered for any other purpose, however, the Court agrees with
many of Defendants’ objections.
The Court makes the following
determinations:
- with respect to the Hammerquest Declaration, the Court sustains
the objections to paragraphs 6 and 14-19, and overrules the
objection as to paragraphs 7;
- with respect to the Kechloian Declaration, the Court sustains
the objections to paragraphs 5, 11-14, and 16;
- with respect to the Kaohelauli`i Declaration, the Court
sustains the objections to paragraphs 9, 11, 14, and 27-28;
and
- with respect to the Fayé Declaration, the Court sustains the
objection to paragraph 12, and overrules all other
objections.
Plaintiff also challenges the expert testimony of
David J. Erickson (“Erickson”).
See Decl. of David J. Erickson
(“Erickson Decl.”), filed 7/1/16 (dkt. no. 110).10
Specifically,
Defendants argue that Erickson’s expertise is hydrogeology and
10
Erickson is the President/Principal Hydrogeologist of
Water & Environmental Technologies, Inc., located in Butte,
Montana, and is also a Professional Geologist in Utah and
Wyoming, and a Certified Professional Geologist with the American
Institute of Professional Geologists. [Erickson Decl. at ¶ 3.]
10
subsurface waters, and that it is not relevant to issues related
to surface water and the Clean Water Act.
Objections at 2.]
[Evidentiary
In addition, Defendants assert that Erickson
has no experience in Hawai`i, and also challenge the methods that
Erickson used at an inspection of the Project Site.
5.]
[Id. at 3-
Expert testimony is governed by Fed. R. Evid. 702, which
states, in relevant part:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the
case.
Plaintiff has submitted ample evidence of Erickson’s experience,
including with surface water. [Decl. of David J. Erickson in
Supp. of Pltf.’s Motion to Compel, filed 11/5/15 (dkt. no. 39),
Exh. 1 (Curriculum Vitae of David. J. Erickson).]
Further, in
considering whether to strike an expert’s declaration, this
district court has ruled that, when a party objecting to an
expert’s declaration has not requested an evidentiary hearing to
11
determine the relevant expert’s qualifications under Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993),
“assertions . . . do not, without more, establish that [a person]
is not qualified as an expert.”
Haw. Wildlife Fund v. Cty. of
Maui, 24 F. Supp. 3d 980, 987 (D. Hawai`i 2014).
This district
court “therefore decline[d] to strike any part of” the challenged
declaration.
Id.
Here, too, Defendants have not requested a
Daubert hearing, and the Court overrules Defendants’ objections
with respect to the Erickson Declaration.
II.
Defendants’ Summary Judgment Motion
Defendants’ Summary Judgment Motion argues that “the
alleged Clean Water Act violations were not occurring or
reasonably likely to recur at the time Plaintiff filed its
Complaint, and Plaintiff lacks standing to bring its Clean Water
Act causes of action.”11
[Mem. in Supp. of Defs.’ Summary
Judgment Motion at 18.]
Defendants rely heavily Gwaltney v.
Chesapeake Bay Fund, 484 U.S. 49, 56 (1987), and states that
“citizens suits brought under the Clean Water Act were intended
to address present or future violations, not violations which had
11
The Court notes that Defendants do not challenge
Plaintiff’s standing based upon any claim that Plaintiff cannot
bring the instant suit on its members’ behalf. Instead,
Defendants standing argument is based on their belief that
Plaintiff did not have “the required facts to have standing to
bring this case or that any, let alone, all material facts have
been established without any genuine dispute of material fact.”
[Defs.’ Combined Mem. at 17.]
12
wholly occurred in the past.”
[Id. at 12.]
According to
Defendants, there were no ongoing violations in the instant
matter because:
on June 24, 2014, Defendants stopped
construction on the Project Site; since that date, only
agricultural work has been conducted on the Project Site; and
experts have concluded that the precautions that were taken to
control stormwater runoff on the Project Site were sufficient to
“satisfy applicable stormwater regulations.”
A.
[Id. at 15-17.]
Continuing Violations Under the Clean Water Act
“To establish a violation of the [Clean Water] Act’s
NPDES requirements, a plaintiff must prove that defendants
(1) discharged, i.e., added (2) a pollutant (3) to navigable
waters (4) from (5) a point source.”
Comm. to Save Mokelumne
River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir.
1993) (citation omitted).
Each of these terms has a specific
definition under the act.
“Discharge of a pollutant” means
“(A) any addition of any pollutant to navigable waters from any
point source, [and] (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point source
other than a vessel or other floating craft.”
§ 1362(12).12
33 U.S.C.
Moreover, “pollutant” is defined as “dredged
12
In addition, 40 C.F.R. § 122.2(b) states that “[t]his
definition includes additions of pollutants into waters of the
United States from: surface runoff which is collected or
channelled by man[.]”
13
spoil, solid waste, incinerator residue, sewage, garbage, sewage
sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discharged equipment,
rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.”
§ 1362(6).
“Navigable waters” are “the waters of the United States,
including the territorial seas.”
§ 1362(7).
Finally, “point
source” is defined as
any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal
feeding operation, or vessel or other floating
craft, from which pollutants are or may be
discharged. This term does not include
agricultural stormwater discharges and return
flows from irrigated agriculture.
§ 1362(14).
Gwaltney concerned the interpretation of § 505(a) of
the Clean Water Act, codified as 33 U.S.C. § 1365(a), which
states, in relevant part:
any citizen may commence a civil action on his own
behalf –(1) against any person (including (i) the
United States, and (ii) any other
governmental instrumentality or agency to the
extent permitted by the eleventh amendment to
the Constitution) who is alleged to be in
violation of (A) an effluent standard or
limitation under this chapter or (B) an order
issued by the Administrator or State with
respect to such a standard or limitation, or
(2) against the Administrator where there is
14
alleged a failure of the Administrator to
perform any act or duty under this chapter
which is not discretionary with the
Administrator.
The United States Supreme Court held that the Clean Water Act did
not allow “citizen suits for wholly past violations.”
484 U.S. at 60.
Gwaltney,
The Gwaltney Court further explained that “we
agree that § 505 confers jurisdiction over citizen suits when the
citizen-plaintiffs make a good-faith allegation of continuous or
intermittent violation.”
Id. at 64.
Moreover, “[t]he statute
does not require that a defendant ‘be in violation’ of the Act at
the commencement of suit; rather, the statute requires that a
defendant be ‘alleged to be in violation.’”
Gwaltney).
Id. (emphasis in
The Ninth Circuit held that,
On the matter of proving ongoing violations,
we agree with the Fourth Circuit’s recent decision
on remand from Gwaltney that a citizen plaintiff
may prove ongoing violations “either (1) by
proving violations that continue on or after the
date the complaint is filed, or (2) by adducing
evidence from which a reasonable trier of fact
could find a continuing likelihood of a recurrence
in intermittent or sporadic violations.”
Chesapeake Bay Foundation v. Gwaltney, 844 F.2d
170, 171-72 (4th Cir. 1988), on remand from 108 S.
Ct. 376 (1987). We also agree with the Fourth
Circuit’s definition of what may constitute a
continuing likelihood of violations.
“Intermittent or sporadic violations do not cease
to be ongoing until the date when there is no real
likelihood of repetition.” Id. at 172 (emphasis
added). Thus, the Fourth Circuit linked proof of
ongoing violations to the Supreme Court’s
discussion of mootness in Gwaltney:
Consistent with the guidance of the
Supreme Court majority and concurring
15
opinions, the district court may wish to
consider whether remedial actions were
taken to cure violations, the ex ante
probability that such remedial measures
would be effective, and any other
evidence presented during the
proceedings that bears on whether the
risk of defendant’s continued violation
had been completely eradicated when
citizen-plaintiffs filed suit.
Id. (emphasis added). We believe this is the
correct approach to proving ongoing violations or
reasonable likelihood of continuing violations
under Gwaltney.
Sierra Club v. Union Oil Co. of Cal., 853 F.2d 667, 671 (9th Cir.
1988).
B.
Regulatory Framework of the Clean Water Act
1.
General Background
This district court has described the background of the
Clean Water Act:
Congress enacted the Clean Water Act in 1972
“to restore and maintain the chemical, physical
and biological integrity of the Nation’s waters.”
33 U.S.C. §§ 1251-1386. The [Clean Water] Act
prohibits discharge of any pollutants into the
nation’s waters except when specifically
authorized under the [Clean Water] Act. 33 U.S.C.
§ 1311(a). Pursuant to section 402(a), National
Pollutant Discharge Elimination System (“NPDES”)
permits can be issued to particular entities,
allowing them to discharge limited amounts of
pollutants into surface waters. 33 U.S.C.
§ 1342(a). Section 402(b) also permits each state
to implement the Clean Water Act through its own
permit program, so long as the program conforms to
federal guidelines approved by the [United States
Environmental Protection Agency (“EPA”)]
administrator. 33 U.S.C. § 1342(b). The EPA
administrator has authorized the Department of
16
Health of Hawaii to issue and enforce discharge
permits.
The Act subjects applicants for and holders
of state NPDES permits to both state and federal
enforcement actions for failure to comply with the
permit requirements. 33 U.S.C. §§ 1319,
1342(b)(7). . . .
In 1987, Congress amended the Clean Water Act
to address the threat of pollution carried by
storm water runoff into nearby surface waters.
Under the amendments, discharges resulting from
commercial or industrial activities which disturb
more than five acres of land require a permit.
Section 402(p), 33 U.S.C. § 1342(p).
Molokai Chamber of Commerce v. Kukui (Molokai), Inc., 891 F.
Supp. 1389, 1392-93 (D. Hawai`i 1995).
2.
DOH Administration of Discharge Permits
Molokai also discusses the role that the State of
Hawai`i assumed in enforcing the storm water requirements of the
Clean Water Act:
On October 29, 1992, Hawaii DOH amended its
Water Pollution Control regulations to implement
the new federal storm water permitting
requirements.[13] [Haw. Admin. R. §] 11-55. Like
all state NPDES permit programs, state-issued
general permits must at least meet the federal
requirements contained in 40 C.F.R. § 122.28.
[Haw. Admin. R.] § 11-55-34.01. The DOH
regulations include general permit administrative
rules and six general permits. [Haw. Admin. R.]
§ 11-55-34, et. seq. Under the rules, dischargers
must comply with “Standard General Permit
Conditions” specified in Appendix A, imposing the
same obligations on the permittee as the EPA
13
“Storm water” is defined as “storm water runoff, snow
melt runoff, and surface runoff and drainage.” 40 C.F.R.
§ 122.26(b)(13).
17
permit. 57 Fed. Reg. 44412, 22. Appendix C
provides a general permit for storm water
discharges associated with construction activity.
A person seeking coverage under the general
permit for discharge associated with construction
“shall comply with the NOI requirements of
§ 11–55–34.08.” [Haw. Admin. R. §] 11–55,
Appendix C, § 3(a). In order to be covered under
a general permit, an applicant must submit a NOI
“no later than ninety calendar days before the
start of activities or discharges.” [Haw. Admin.
R.] § 11-55-34.08(j). Appendix C incorporates the
90–day requirement:
The developer or operator, normally the
general contractor, of a proposed site
with storm water discharges associated
with a construction activity shall
submit a complete NOI no less than 90
days before the proposed construction
starting date in order to be covered
under this general permit.
Id. at § 1(b).
After receipt of a complete NOI:
the director shall notify the NOI
submitter in writing whether the
proposed activity or discharge[s] is or
are covered under a general permit or an
individual permit application is
required. Notification is complete upon
mailing or facsimile transmission.
[Haw. Admin. R.] § 11-55-34.09(a). The general
permit for discharge associated with construction
provides that it covers discharges “for which a
complete Notice of Intent (NOI) has been submitted
and a Notice of General Permit Coverage (NGPC) has
been issued by the director.” [Haw. Admin. R.]
§ 11-55, Appendix C, § 1(b). The NOI must include
a “Best Management Plan,” which must meet the
requirements of the regulations. Id., Appendix C,
§ 5(b), (d). “The 90–day period, as specified in
subsection 1(b), shall not begin counting until
the date the plan is deemed to be satisfied by the
director.” Id., Appendix C, § 5(c).
18
Id. at 1393-94 (some alterations in Molokai).
3.
Specific Requirements Under Hawai`i Law
Haw. Admin. R. § 11-55-04 explains the NPDES permitting
process:
(a) Before discharging any pollutant, or beginning
construction activities that disturb one or more
acres of land or construction activities that
disturb less than one acre of total land area that
is part of a larger common plan of development or
sale if the larger common plan will ultimately
disturb one acre or more of total land area, or
substantially altering the quality of any
discharges, or substantially increasing the
quantity of any discharges, a person shall submit
a complete NPDES permit application (which shall
include whole effluent toxicity testing data as
specified in 40 CFR § 122.21(j)(5)), submit a
complete notice of intent, except for the point
source discharges from the application of
pesticides, if not required (refer to Appendix M)
or, for certain storm water discharges, meet all
requirements for a conditional “no exposure”
exclusion.
“Disturbance of land” is defined as
the penetration, turning, or moving of soil or
resurfacing of pavement with exposure of the base
course or the exposure of bare soil or ground
surface, including the land surface exposed by
construction roads, baseyards, staging areas,
demolition, headquarters, and parking areas. It
does not include grass or weed cutting, bush or
tree trimming or felling that leaves soil or
ground intact. It includes “grubbing” in its
normal meaning of the use of equipment to knock
down and push vegetation out of the way, typically
uprooting vegetation and disturbing the ground
surface.
Haw. Admin. R. § 11-55, Appendix C, § 1.4.
Further, the general permit associated with storm water
19
discharges associated with construction activity notes that it
covers discharges composed entirely of storm water
runoff associated with construction activities,
including, but not limited to, clearing, grading,
excavation, and construction support activities
that result in the disturbance of one acre or more
of total land area. This general permit also
covers activities that disturb less than one acre
of total land area that is part of a larger common
plan of development or sale if the larger common
plan will ultimately disturb one acre or more of
total land area.
Id., § 1.1.
“A larger common plan of development or sale” is
defined as
a contiguous area where multiple separate and
distinct construction activities may be taking
place at differing times on different schedules
under on plan. “Common plan” is broadly defined
as any announcement or piece of documentation
(including a sign, public notice or hearing, sales
pitch, advertisement, drawing, permit application,
zoning request, computer design, etc.) or physical
demarcation (including boundary signs, lot stakes,
surveyor markings, etc.) indicating construction
activities may occur on a specific plot.
Id., § 1.5.
C.
Possible Exemptions
Defendants argue that, pursuant to the DOH Sanitary
Survey, they do not need an NPDES permit for their current
activities at the Project Site.
[Defs.’ Combined Mem. at 4.]
The DOH Sanitary Survey states that “[h]igh enterococci bacteria
levels have been measured in the Waiopoli Ditch,” and that
“[e]nterococci has traditionally been used to indicate sewage
contamination.”
[DOH Sanitary Survey at 8.]
20
In addition, DOH
states that “[a]nimal fecal contamination of Waiopili Ditch could
be a source of concern.”
[Id. at 9.]
With regard to Hawai`i
Dairy, the DOH Sanitary Survey notes:
DOH also received complaints from people citing
potential ground water contamination, cattle
manure discharge into State waters, odor, flies,
and improper location of the proposed Hawaii Dairy
Farms LLC (HDF) dairy. There is a claim that
[Hawai`i Dairy] has already contaminated Waiopili
Ditch, which is also in the same sub-watershed as
the proposed farm. Currently, there are no dairy
cattle on property. Several people have request
that [Hawai`i Dairy] obtain a[n NPDES] permit
. . . . An NPDES permit is currently not a
requirement for their proposed operation.
[Id. at 12.]
Plaintiff argues that DOH Sanitary Survey refers to
a concentrated animal feeding operation (“CAFO”) NPDES permit,
which “is distinct from, and in addition to, the requirement that
Defendants obtain a[n] NPDES Permit for stormwater discharges
from construction activities.”
[Plaintiff’s Reply at 11-12.]
Plaintiff also argues that Defendants have acknowledged this
distinction and that Defendants have admitted that they need an
NPDES permit for some of their desired construction activities.
As such, “Defendants’ arguments in its response are therefore
entirely disingenuous.”
[Id. at 12.]
The federal regulations distinguish between NPDES
permits for concentrated animal feeding operations (“CAFO”) and
storm water discharges.
See 40 C.F.R. § 122.23 (explaining NPDES
permitting requirements for CAFOs); 40 C.F.R. § 122.26
(explaining NPDES permitting requirements for storm water).
21
Defendants are also well aware of this distinction.
See Decl. of
Charles M. Tebbutt (“Tebbutt Decl.”), filed 7/1/16 (dkt. no.
109), Exh. 2 (Hawai`i Dairy’s Draft Environmental Impact
Statement, Volume I, dated May 2016) (“May 2016 EIS”) at 2
(listing the required permits for Defendants’ project, including
an NPDES Construction Stormwater General Permit and a separate
NPDES CAFO Permit).
Defendants’ Summary Judgment Motion also
argues that “[o]n May 7, 2015, [Hawai`I Dairy] submitted an
application for an NPDES permit to [DOH], which is currently
still under review.”
Motion at 7.]
[Mem. in Supp. of Defs.’ Summary Judgment
At no point have Defendants informed the Court
that they have withdrawn their NPDES permit application because
it is no longer necessary or that DOH has responded to their
application by telling them that a permit is not required.
The
meaning of the DOH Sanitary Survey is therefore a disputed issue
of material fact.
Accordingly, Defendants are not entitled to
summary judgment based upon this document alone.
See Fed. R.
Civ. P. 56(a) (“The court shall grant 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.”).
D.
Alleged Violations of the Clean Water Act
In the instant matter, it is undisputed that Defendants
have never had an NPDES permit.
In addition, Defendants admit
22
that:
5.
The scope of construction performed at the
[Project Site] from February 2014 until June 2014
consisted of the following:
(a)
Installation of one eight inch water
main to feed one irrigation pivot
sprinkler;
(b)
Installation and connection of one
stationary pivot irrigation system that
operates today;
©
Construction of one stationary pivot
irrigation system that is not connected
or operating as of today;
(d)
Placement of bridges over drain lines
above the grade to allow pivot
irrigation system to cross over drain
lines;
(e)
Installation of several small diameter
lateral water lines feeding several
circular concrete water troughs; and
(f)
Installation of the water trough pads
above the grade, which generally
included the importing of locallysourced granular material to build up to
a level surface for their placement
rather than excavating.
. . . .
7.
In addition, between February and April of
2015, ground work, drilling, casing and grouting
work was completed on four separate vertical
monitor wells. Final locking caps were installed
on the wells in May and June of 2015.
[Decl. of James Garmatz (“Garmatz Decl.”),14 filed 11/25/15 (dkt.
14
James Garmatz (“Garmatz”) is the Farm Manager at Hawai`i
Dairy and the sole employee of the company. [Garmatz Decl. at
(continued...)
23
no. 43), at ¶¶ 5-7.]
Garmatz also states that:
Since construction and development was stopped, I
have done only agricultural work on the property.
That ongoing work is limited to maintaining the
grass and the borders, irrigating/watering, mowing
grass, trimming trees for installation of new
fencing, and the application of fertilizer at
agronomic rates. To irrigate the approximate 85
acres on a timely basis is to apply at least 0.3
inches of water daily. This process allows the
circular pivot system to cross the drain lines via
the bridges enabling the pivot to reach all the
acres. The application of fertilizer is done
every 18 days with a mechanical fertilizer
spreader. The fertilizer being spread is a custom
formula that is mixed after soil samples are taken
and analyzed and the proper mixture of [sic] is
recommended by an agronomist. I also mow all the
approximately 85 acres to a level of 7-8 inches
tall and this, in most part, is done weekly.
[Id. at ¶ 12.]
In addition to these activities, the record establishes
that a thirty-nine acre area was harrowed five times from July
2015 to August 2015, [Tebbutt Decl., Exh. 3 (6/13/16 Depo. of
James J. Garmatz) (“Pltf.’s Garmatz Depo.”) at 77,] and
Defendants continue to disc a perimeter around a four-acre
nursery to a depth of six inches [id. at 110-11].
Moreover, on
July 1, 2015, Defendants admit that they used a backhoe to
replace bolts in an irrigation pivot, [Defs.’ Concise State of
Facts in Opposition to Plaintiff’s Summary Judgment Motion
(“Defs.’ CSOF in Opp.”), filed 9/1/16 (dkt. no. 219), Decl. of
14
(...continued)
¶¶ 1, 4.]
24
Dirk. B. Paloutzian (“Paloutzian Decl.”), Exh. A (6/13/16 Depo.
of James J. Garmatz) (“Defs.’ Garmatz Depo.”) at 121,] and, on
August 3, 2015, they used a backhoe to fix a broken irrigation
line riser [id. at 123-24].15
1.
Common Plan of Development
Defendants argue that the “development of land for the
purpose of growing crops, and all incidental construction that
entails, is not a construction activity subject to NPDES
requirements.”
[Defs.’ Combined Mem. at 5.]
However, this
distinction is only relevant if the activity is not part of a
common plan of development.
This district court has stated:
The “plan” in a common plan of development is
broadly defined by the EPA as any announcement or
piece of documentation or physical demarcation
indicating construction activities may occur on a
specific plot. The EPA further clarified what is
meant by a “larger common plan of development”:
“Part of a larger common plan of
development or sale” is a contiguous
area where multiple separate and
distinct construction activities may be
taking place at different times on
different schedules under one plan.
Thus, if a distinct construction
activity has been identified onsite by
the time the [NPDES] application would
be submitted, that distinct activity
should be included as part of a larger
plan.
Na Mamo O `Aha`ino v. Galiher, 28 F. Supp. 2d 1258, 1263 (D.
15
The use of the backhoe on August 3, 2015, involved
digging “down like, again, 8 or 12 inches and reset the riser on
the main line.” [Pltf.’s Garmatz Depo. at 123-24.]
25
Hawai`i 1998) (alterations in Na Mamo) (citing NPDES Storm Water
Program Question and Answer Document Volume I, March 1992, page
16), abrogated on other grounds by, Nw. Envtl. Def. Ctr. v.
Decker, 728 F.3d 1085 (9th Cir. 2013).
In Na Mamo, this district
court ruled that because access roads used for farming purposes
fall within the agricultural exception to NPDES permit
requirements, and that “[the d]efendants’ remaining activities
did not result in the disturbance of more than five acres and
were not carried out pursuant to a ‘larger common plan of
development,’” an NPDES permit was not required.
Id.
The
plaintiff in Na Mamo challenged the construction of, inter alia,
a “helipad and utility barn,” but could only point to a document
dated after the relevant time period and a document that showed
that the defendants “intended to develop their land for
agriculture and farming,” not “that they intended to carry out
construction activities.”
Id. at 1260, 1263.
Here, it is clear that Defendants’ actions were
undertaken pursuant to a common plan of development.
Defendants’
NPDES Form C Application,16 submitted to DOH on March 7, 2015,
describes the project:
A pasture-based rotational grazing, dairy
facility for 699 cows (DOH Waste Management Plan)
reviewed will be constructed. Construction items
16
This is an application for coverage under the general
permit for storm water discharged related to construction
activities pursuant to Haw. Admin. R. § 11-55, Appendix C.
26
at the facility include the following: Paved
access road and truck turnaround near the
facility, concrete holding yards and gravel arm
races, a milking parlor, implement shed, calving
sheds, waste settling pond and storage pond,
effluent and sludge pumps and distribution system,
feed silos, potable water tanks for the milking
parlor and livestock consumption, and an
individual wastewater system (IWS).
Additional improvements around the farm and
not at the dairy facility include the following:
Installation of an irrigation water supply,
storage, and distribution system, livestock
paddocks for grazing areas, cow walkways/races and
farm roads, potable water distribution systems for
livestock consumption with watering facilities and
concrete troughs, upgrades to the existing potable
water well and new transmission mains for the
dairy facility, and an animal cemetery.
Potential future expansion to up to 2000 cows
will be considered for the site, following the
review of other applicable permits or reviews
needed for expansion. Potential expansion would
occur at a date to be determined, following
completion of the work indicated herein. A
separate NPDES Permit, for Construction Stormwater
Activities, will be obtained for disturbances
greater than 1 acre, as needed, should expansion
work be performed in the future.
[Decl. of Kyle Datta (“Datta Decl.”),17 filed 11/25/15 (dkt. no.
44), Exh. A at 5.]
The May 2016 EIS also states that the project
area is 557 acres and describes the “Proposed Use & Components”
as:
“Agriculture (Dairy) use for dairy buildings, roads, sheds
and ponds, paddocks, cow races, farm roads, irrigation system,
water storage, drainage ways, setbacks/vegetated buffers.”
17
Kyle Datta is the General Partner of Ulupono.
Decl. at ¶ 1.]
27
[May
[Datta
2016 EIS at 2.]
The Court therefore FINDS that, for purposes of
the Summary Judgment Motions, because Defendants’ actions were
undertaken as part of a common plan of development, they needed
an NPDES permit for all of their activities.18
2.
Discharge of Pollutant to Navigable Waters
It is clear to the Court that Defendants engaged in
activities pre- and post-Complaint that required an NPDES permit.
The Court must still consider whether any pollutants created as a
result of these actions were discharged into navigable waters.
i.
Navigable Waters
According to Tom Nance, President of Tom Nance Water
Resource Engineering:
8.
The [Project Site] drains into two major
ditches running mauka to makai.
Additionally, runoff from offsite drains in
the [Project Site] area. The offsite
tributary area is about 1200 acres, most of
which is the steep lands which enclose
Maha`ulepu Valley.
9.
Generally, runoff from the west side of the
valley sheet flows or is conveyed via shallow
concentrated flow through the various system
of ridges and valleys along the west side of
Maha`ulepu Valley. Runoff concentrates into
18
Defendants also cite the 2/5/1998 Pendergast Letter to
support their position that “the EPA has explained that preoperation construction and post-construction operations are
treated differently under stormwater permitting regulations.”
[Defs.’ Combined Mem. at 8.] The distinction that Defendants
attempt to draw is irrelevant here because the Court has
determined that Defendants’ activities are part of a common plan
of development, and therefore any agricultural exclusion does not
apply.
28
several ditches created by prior agricultural
operations, before ultimately collecting into
one of the major ditches that runs mauka to
makai along the west side of the far, and
along the proposed location of the dairy
facility. This ditch conveys both water
collected from the various tributary ditches,
and also sheet flow from the west side of the
farm, to the makai boundary of the farm along
Maha`ulepu Road, before leaving he site and
ultimately flowing into the ocean.
10.
Similarly, runoff from the east side of the
valley sheet flows or is conveyed via shallow
concentrated flow through the various system
of natural drainageways along the east side
of Maha`ulepu Valley. Runoff concentrates
into several ditches, created by prior
agricultural operations, before ultimately
collecting into one of the major ditches that
runs mauka to makai along the central or east
side of the farm. This ditch conveys both
water collected from various tributary
ditches and sheet flow from the central and
eastern areas of the farm, to the makai
boundary of the farm along Maha`ulepu Road,
before leaving the site and ultimately flows
into the ocean.
[Defs.’ CSOF in Opp., Decl. of Tom Nance (“Nance Decl.”) at ¶¶ 810.]
It is undisputed that the Pacific Ocean is a “navigable
water” under the Clean Water Act.
Moreover, this district court
has explained:
The plurality in Rapanos [v. United States] made
clear that the prohibition in the Clean Water Act
is not limited to “the addition of any pollutant
directly to navigable waters from any points
source,” but rather extends to “the addition of
any pollutant to navigable waters.” Rapanos, 547
U.S. [715,] 743, 126 S. Ct. 2208 [(2006)]
(emphasis in original) (internal quotation marks
omitted). “Thus, . . . lower courts have held
that the discharge into intermittent channels of
any pollutant that naturally washes downstream
29
likely violates § 1311(a), even if the pollutants
discharged from a point source do not emit
directly into covered waters, but pass through
conveyances in between.” Id. (internal quotations
marks omitted).
Haw. Wildlife Fund, 24 F. Supp. 3d at 995.
ii.
Point Source
This Court has concluded that the Project Site is part
of a common plan of development to which the agricultural
exemptions under the relevant regulations do not apply.
In Na
Mamo, this district court determined that “[c]onstruction, as
described in 40 C.F.R. § 122.26(b)(14)(x), is a point source
activity.”19
28 F. Supp. 2d at 1261.
Moreover, in California
Sportfishing Protection Alliance v. Diablo Grande, Inc., the
district court found that “[the d]efendant’s development of well
over five acres of the [p]roperty is ‘construction activity’ not
within the agricultural, silvicultural, or any other exception to
the permit requirements or point source definition.
By
identifying [the d]efendant’s construction activity on the
[p]roperty, [the p]laintiff has sufficiently identified a ‘point
19
40 C.F.R. § 122.26(b)(14)(x) defines “industrial
activity,” in part, as:
Construction activity including clearing, grading,
and excavation, except operations that result in
the disturbance of less than five acres of total
land area. Construction activity also includes
the disturbance of less than five acres of total
land area that is part of a larger common plan of
development or sale if the larger common plan will
ultimately disturb five acres or more[.]
30
source.’”
209 F. Supp. 2d 1059, 1077 (E.D. Cal. 2002) (citation
omitted).
The Court FINDS that, for purposes of the Summary
Judgment Motions, the construction that Plaintiff has identified
on the Project Site, see supra Section II.D., identifies a point
source under the Clean Water Act.
iii. Effectiveness of BMPs
On September 9, 2015, licensed civil engineer Ross
Dunning (“Dunning”) visited the Project Site (“Dunning Visit”).20
[Decl. of Ross Dunning (“Dunning Decl.”), filed 11/25/15, dkt.
no. 45, at ¶¶ 1, 6.]
During the Dunning Visit, he observed
thirty-five-foot “vegetative buffers” that “were still in place
and that . . . were of a height and density that suggested to me
that the vegetation had been in place before the commencement of
construction reported to be in February of 2014.”
[Id. at ¶ 12.]
Dunning contends that the vegetative buffer is a sediment control
Best Management Practice (“BMP”) and that “the vegetated buffers
should have adequately reduced the discharge of sediments from
soils disturbed during construction and pasture renovation
activities.”
[Id. at ¶ 13.]
Moreover, Dunning notes that there
was a “significant rainfall event” before his visit and “though
water was observed in the drainage channels shown to me, flowing
20
In addition to being a “licensed profession Civil
Engineer and Certified Erosion and Sediment Control Lead in the
State of Washington,” Dunning is also the “Stormwater Practice
Leader and Principal for Kennedy/Jenks Consultants.” [Dunning
Decl. at ¶¶ 1-2.]
31
water from the fields into the onsite drainage channels was not
observable from my vantage point.”
[Id. at ¶ 11.]
Dunning also
provided his opinion on the effectiveness of the vegetative
buffers, explaining:
“I did not directly observe runoff from the
[Hawai`i Dairy] fields into the discharge channels that transect
the [Project Site] due to the presence of the dense, wellestablished vegetated buffers described above aligning the banks
of the drainage channels.”
[Id. at ¶ 14.]
On March 29 and 30, 2015, Erickson visited the Project
Site (“Erickson Visit”).
[Erickson Decl. at ¶ 7.]
During the
Erickson Visit, he collected water and soil samples, and also
noted the extensive construction activity that had taken place at
the Project Site.
[Id. at ¶¶ 7, 9.]
After analyzing the soil
samples Erickson collected, he concluded that “[t]he fine nature
of these soil types means that precipitation events, especially
intense rainfall,[21] will quickly move through and across the
[Project Site], finding its way to ditches and other conduits
that eventually converge with the Waiopili Stream.”
[Id. at
¶ 28.] Moreover, “the extensive network of drainage ditches and
21
Erickson states that any rainfall of half an inch or more
“would have been enough to transport the dirt, sediment, or other
pollutants from [Hawai`i Dairy’s] ground-disturbances into
ditches and surface waters on the proposed dairy site.”
[Erickson Decl. at ¶ 39.] Defendants disagree. See Nance Decl.
at ¶ 13 (“Erickson’s contention that a rainfall event of 0.5
inches is sufficient to transport pollutants to the ditches is
unsupported by facts and/or reasoning.”).
32
canals were installed to promote rapid runoff and prevent ponding
on crop land to allow farming on the [Project Site].”
[Id.]
Erickson observed “no effort to maintain any vegetative buffer
and we did not observe any evidence of a BMP on the [Project
Site],” and “[c]ontrary to Mr. Dunning’s opinion, I do not
believe that any Best Management Practices have been implemented
effectively such that any discharges have been and are being
prevented.”22
[Id. at ¶¶ 36, 43.]
There is some dispute about the amount of rain that has
fallen in Maha`ulepu Valley since June 1, 2015.
Compare Erickson
Decl. at ¶ 39 (“Since June 1, 2015, there have been at least 46
days of recorded rainfall at 0.5 inches or greater, any and all
of which would have been enough to transport the dirt, sediment,
or other pollutants from [Hawai`i Dairy’s] ground-disturbances
into ditches and surface waters on the proposed dairy site.”),
with Defs.’ CSOF in Opp., Decl. of Peter Munn (“Munn Decl.”) at
22
Defendants dispute Erickson’s findings. See, e.g., Nance
Decl. at ¶ 13 (noting that Erickson’s “contention that a rainfall
event of 0.5 inches is sufficient to transport pollutants to the
ditches is unsupported by facts and/or reasoning”); id. at ¶ 28
(asserting that Erickson’s “opinions heavily rely on general
references to soil and water quality samples without providing
any explanation of how he reaches his conclusions from those
samples, or any specificity as to location, date, and/or time of
any alleged pollutant discharge”). However, on a motion for
summary judgment, “[t]he court does not make credibility
determinations or weigh conflicting evidence.” Kauhako v. State
of Haw. Bd. of Educ. Dep’t of Educ., Civil No. 13-00567 DKW-BMK,
2015 WL 5312359, at *7 (D. Hawai`i Sept. 9, 2015) (citing Nelson
v. City of Davis, 571 F.3d 924 (9th Cir. 2009)).
33
¶¶ 11-12 (explaining that his company did not recognize that the
rain data from the rain gauges was incorrect “because of
unfamiliarity with the U.S. standard units of measurement and
because of unfamiliarity with the climate at the [Hawai`i Dairy]
site,” and that the amount of rainfall recorded in 2015 is was
actually 31.7 inches, not 124.7 inches).23
However, Defendants
do not dispute that, since June 1, 2015, there have been some
days on which it has rained 0.5 inches or more at the Project
Site.
In Molokai, this district court explained that the
“[d]efendants apparently believe that on the day construction
ceases, the violations become ‘wholly past’ under the Gwaltney
doctrine,” but that this “fails to account for the interplay of
rainwater and the construction site, an interaction that the
[Clean Water] Act and its regulatory scheme is intended to
manage.”
891 F. Supp. at 1400.
“It is the discharge of water
without permit coverage that violates the [Clean Water] Act, not
the construction activity itself.”
Id.
As such, “for [the
d]efendants to show that they were not in violation of the [Clean
Water] Act, they would have to eliminate all issues of fact
concerning whether any pollutants were discharged during the
23
Peter Munn is the Chief Executive Officer and Managing
Director of Harvest Electronics, the company that monitors
Hawai`I Dairy’s rain gauge data, among other things. [Munn Decl.
at ¶¶ 1, 5.]
34
period in which [the p]laintiffs filed their Complaint.”
1401 (emphasis in Molokai).24
Id. at
Here, Plaintiff has identified a
pollutant (the storm water runoff from Defendants’ construction
activities) from a point source (the Project Site) that was
discharged to navigable waters (the drainage systems at the
Project Site and the path they follow to the Pacific Ocean).25
The record also establishes that these activities took place
before and after the Complaint was filed.
Though there are
questions of material fact regarding the sufficiency of
24
Defendants argue that, even if pollutants were discharged
from a point source at the Project Site after the Complaint was
filed, “the continued contribution of discharge from these point
sources would not constitute further discharge because the
continuing effects of any purported prior discharges do not
constitute present discharges in violation of the [Clean Water
Act].” [Defs.’ Combined Mem. at 11-12.] To support their
position, Defendants cite Hamker v. Diamond Shamrock Chemical
Co., where the Fifth Circuit found that “[m]ere continuing
residual effects resulting from a discharge are not equivalent to
a continuing discharge.” 756 F.2d 392, 397 (5th Cir. 1985). In
Hamker, however, “[t]he complaint allege[d] facts constituting
only one discharge of oil from defendant’s pipe.” Id. (internal
quotation marks omitted). The instant case is easily
distinguishable because, as this district court stated in
Molokai, “[e]ven if construction had ceased and erosion control
measures were in place, [the d]efendants were in violation of the
[Clean Water] Act . . . failing proof of a complete absence of
storm runoff.” 891 F. Supp. at 1402 (footnote omitted).
25
At the hearing, Defendants represented that Plaintiff had
not shown any ditch or other conduit for pollutants that was
created by Hawai`i Dairy during construction. However,
“defendants need not construct the conveyances ‘so long as they
are reasonably likely to be the means by which pollutants are
ultimately deposited into a navigable body of water.’” Evtl.
Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 821
(N.D. Cal. 2007) (quoting Concerned Area Residents for Env’t v.
Southview Farm, 34 F.3d 114, 118 (2d Cir. 1994)).
35
Defendants’ vegetative buffers and the effect of rainfall on the
Project Site, the Court concludes that Plaintiff has “adduc[ed]
evidence from which a reasonable trier of fact could find a
continuing likelihood of a recurrence in intermittent or sporadic
violations.”
Sierra Club, 853 F.2d at 671 (citation and internal
quotation marks omitted).
Moreover, “[i]f the defendant fails to
convince the court that there are no genuine issues of fact after
the plaintiff offers evidence to support the allegations of
ongoing noncompliance, the cause goes to trial on the merits.”
Id. at 669 (citing Gwaltney, 484 U.S. at 66).
Defendants’
Summary Judgment Motion is therefore DENIED.
III. Plaintiff’S Summary Judgment Motion
Plaintiff’s Summary Judgment Motion seeks “partial
summary judgment finding Defendants liable for illegally
undertaking facility construction without a required [NPDES]
permit.”
[Pltf.’ Combined Mem. at 1.]
argues that:
Specifically, Plaintiff
since filing the Complaint, Defendants have
continued construction at the Project Site; there have been many
instances of rainfall that exceeds 0.5 inches since that time;
and “[r]ainfall events of this magnitude interact with the
disturbed ground causing surface runoff.”
[Id.]
The Court has
already determined that there are questions of material fact
about the effect of rainfall on the Project Site and the
existence and/or effectiveness of the vegetative buffers.
36
See
supra Section I.D.2.iii.
As such, there is a genuine dispute of
material fact regarding the discharge of pollutants, and
Plaintiff’s Summary Judgment Motion must be DENIED.
IV.
Motion for Leave
The Motion for Leave seeks permission from the Court to
file two additional declarations and corresponding documents
related to:
the corrected rainfall data; Erickson’s
qualifications; and “exhibits necessary to respond to arguments
raised in Defendants’ [Combined Memorandum].”
at 2.]
[Motion for Leave
The Court has not considered these declarations or
documents in reaching its conclusions on the Summary Judgment
Motions.
Moreover, it is clear to the Court that Plaintiff’s
additional submissions would not alter its decision on
Defendants’ Summary Judgment Motion, nor, given the competing
evidence with regard to the sufficiency of the vegetative
buffers, its decision on Plaintiff’s Summary Judgment Motion.
The Motion for Leave is therefore DENIED AS MOOT.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment, filed on November 25, 2015, Plaintiff’s Motion
for Summary Judgment on Liability, filed on July 1, 2016, and
Plaintiff’s Ex Parte Motion for Leave to File Supplemental
Declarations in Support of Reply to Motion for Partial Summary
Judgment, filed on September 1, 2016, are all HEREBY DENIED.
37
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII,
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
FRIENDS OF MAHA`ULEPU, INC. V. HAWAI`I DAIRY FARMS; CV 15-00205
LEK-BMK; ORDER DENYING: (1) DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT; (2) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON
LIABILITY; AND (3) PLAINTIFF’S EX PARTE MOTION FOR LEAVE TO FILE
SUPPLEMENTAL DECLARATIONS IN SUPPORT OF REPLY TO MOTION FOR
PARTIAL SUMMARY JUDGMENT
38
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