United States District Court, D. Hawaii
NA KIA'I KAI, an unincorporated association, SURFRIDER FOUNDATION, a non-profit corporation, and PESTICIDE ACTION NETWORK NORTH AMERICA, a non-profit corporation, Plaintiffs,
JAMES NAKATANI in his official capacity as Executive Director of the STATE OF HAWAI‘I AGRIBUSINESS DEVELOPMENT CORPORATION, and VIRGINIA PRESSLER in her official capacity as Director of Health for the STATE OF HAWAI‘I DEPARTMENT OF HEALTH, Defendants.
ORDER GRANTING DEFENDANT PRESSLER'S MOTION TO
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
in her official capacity as Director of Health for the State
of Hawaii Department of Health (“DOH”),
seeks dismissal of Plaintiffs' First Amended Complaint
(“FAC”). The organizational Plaintiffs allege
exclusively state law claims against Pressler. However, under
the Eleventh Amendment sovereign immunity afforded the State
of Hawaii and its officials sued in their official
capacities, Pressler is immune from suit in this court, and
there is no basis to find waiver. Accordingly, Pressler's
motion to dismiss is GRANTED.
sole claim against Pressler is for violation of her public
trust duties under the Hawaii State Constitution, Article XI;
Hawaii Revised Statutes (“HRS”) § 342D-4;
and Hawaii Administrative Rules (“HAR”) §
11-54-1.1(b). Plaintiffs allege that such a violation
occurred when Pressler aided, abetted, and facilitated the
State Agribusiness Development Corporation
(“ADC”) Director's continuous or intermittent
discharges of polluted waters from the drainage ditch system
into waters of the United States, without a permit, in
violation of HRS § 342D-50(a). See FAC ¶
92. Plaintiffs do not contest the applicability of the
Eleventh Amendment to their claims against Pressler in her
official capacity, but argue instead that she waived this
defense by her conduct in this and prior litigation. The
Court briefly recounts the litigation history between the
filed their complaint in the first of two civil actions in
this district court, Na Kia‘i Kai et al. v. State
of Hawaii Agribusiness Development Corp. et al., Civ.
No. 16-00405 DKW-RLP, on July 25, 2016, naming ADC and DOH
only. The first case alleged CWA violations by the ADC and
violations of public trust duties by both ADC and DOH. Compl.
¶¶ 83-92, Dkt. No. 1 in Civ. No. 16-00405. Pressler
was not named as a defendant. DOH filed an answer, Dkt. No.
17 in Civ. No. 16-00405, and the parties engaged in discovery
for several months during 2017, including taking the
depositions of two DOH employees following Plaintiffs'
motion to compel, Dkt. No. 46 in Civ. No. 16-00405.
October 30, 2017, the parties stipulated to the dismissal
without prejudice of Plaintiffs' first case pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A)(ii). See
Dkt. No. 54 in Civ. No. 16-00405. Under the terms of the
Joint Stipulation for Dismissal of All Claims, all of
Plaintiffs' claims against ADC and DOH were dismissed
without prejudice, id., and the parties agreed that
discovery requests and responses from the first case would
apply to Plaintiffs' claims against defendants in the new
proceeding that Plaintiffs planned to file. See
Decl. of Kylie Wager Cruz ¶ 22, Dkt. No. 31-1. According
to Plaintiffs, DOH did not raise its Eleventh Amendment
sovereign immunity defense at any point in the parties'
communications regarding the Plaintiffs' proposal to
amend their complaint, enter into the stipulated dismissal,
or to file a new complaint, nor did DOH object to the filing
of a new complaint in a new civil action. Wager Cruz Decl.
filed their original complaint in the present civil action,
Civ. No. 18-00005 DKW-RLP, on January 5, 2018, naming as
defendants (1) James Nakatani in his official capacity as
Executive Director of ADC and (2) DOH. Dkt. No. 1. On January
16, 2018, Plaintiffs filed their FAC, naming Nakatani in his
official capacity, and for the first time, naming Pressler in
her official capacity as Director of DOH. Dkt. No. 9. The FAC
included three causes of action: (1) CWA and HRS §
342D-50(a) claims against Nakatani; (2) a breach of public
trust claim against Nakatani; and (3) a breach of public
trust claim against Pressler.
filed her first motion to dismiss on January 25, 2018,
seeking dismissal of any federal claim against her for
failure to give 60-days written notice of intent to file suit
as required under the Clean Water Act, 33 U.S.C. §
1365(b)(1)(A) and 40 C.F.R. § 135.2(a)(2). Dkt. No. 14.
In her reply in support of that motion, Pressler raised
Eleventh Amendment sovereign immunity as a separate basis for
dismissal of the public trust violation claim, in response to
Plaintiffs' confirmation that they raised no federal
claims against Pressler. Dkt. No. 24. The Court denied
Pressler's motion because Plaintiffs had not asserted a
CWA claim against her, and declined to reach the merits of
her Eleventh Amendment arguments because they were raised for
the first time in her reply brief. See Dkt. No. 25
(4/20/18 Court Minutes); Dkt. No. 29 (4/20/18 Hrg. Tr.).
Pressler's Current Motion to Dismiss
seeks dismissal, based upon the State's sovereign
immunity, of Plaintiffs' sole claim against her for
public trust violations under state law. That cause of action
92. Defendant DOH Director, through DOH, is breaching her
public trust duties under Haw. Const. art. XI, §§ 1
and 6, H.R.S. § 342D-4, and H.A.R. § 11-54-1.1(b)
by aiding, abetting, and facilitating the ADC Director's
continuous or intermittent discharges, through ADC, of
polluted waters from the drainage ditch system into waters of
the United States without a permit, in violation of H.R.S.
93. Alternatively, even if the pollution in and from the
drainage ditch system did not require a permit, defendant DOH
Director, through DOH, is breaching her public trust duties
under Haw. Const. XI, §§ 1 and 6, H.R.S. §
342E-3, and H.A.R. § 11-54-1.1(b), by failing to protect