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Na Kia'i Kai v. Nakatani

United States District Court, D. Hawaii

July 13, 2018

NA KIA'I KAI, an unincorporated association, SURFRIDER FOUNDATION, a non-profit corporation, and PESTICIDE ACTION NETWORK NORTH AMERICA, a non-profit corporation, Plaintiffs,
v.
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 DISMISS

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Pressler, in her official capacity as Director of Health for the State of Hawaii Department of Health (“DOH”), [1] 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.

         BACKGROUND

         The 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 parties.

         I. Procedural Background

         Plaintiffs 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.

         On 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. ¶ 23.

         Plaintiffs 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.

         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.).

         II. Pressler's Current Motion to Dismiss

         Pressler 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 alleges-

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. § 342D-50(a).
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 ...

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