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Inc. v. Hawai`i Dairy Farms, LLC

United States District Court, D. Hawaii

December 1, 2016

FRIENDS OF MAHA'ULEPU, INC., a Hawai`i non-profit corporation, Plaintiff,
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.


          Leslie E. Kobayashi United States District Judge.

         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 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 Support of Reply to Motion for Partial Summary Judgment (ECF No. 107) (“Motion for Leave”), filed on September 1, 2016. [Dkt. nos. 215, 221.[4] 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.


         On June 1, 2015, Plaintiff filed its Complaint. [Dkt. no. 1.] 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”). [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. [Id. at ¶ 44.] Sources of these pollutants 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 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.]


         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] [First Request for Judicial Notice at 2.] This district court has 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 (ECF 107) Plaintiff's Motion for Partial Summary Judgment (“Second Request for Judicial Notice”). [Dkt. no. 216.] Defendants request judicial notice of: (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”). [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 co-founder 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.” At the hearing, 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 subsurface waters, and that it is not relevant to issues related to surface water and the Clean Water Act. [Evidentiary Objections at 2.] 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. [Id. at 3-5.] 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 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 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.” [Id. at 15-17.]

         A. 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.” 33 U.S.C. § 1362(12).[12] Moreover, “pollutant” is defined as “dredged 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 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.” Gwaltney, 484 U.S. at 60. 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.'” Id. (emphasis in Gwaltney). 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 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 ...

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