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, Defendant.
ORDER RE: SUMMARY JUDGMENT AND DISMISSAL
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE
Na Kia‘i Kai, Surfrider Foundation, and Pesticide
Action Network North America (Plaintiffs) seek injunctive and
declaratory relief for alleged violations of the Clean Water
Act (CWA), 33 U.S.C. §§1251-1311(a), and breach of
public trust under Haw. Const. art. XI §§1, 6, as a
result of discharges from the Mānā Plain near
Kekaha, Kauai, Hawaii into the Pacific Ocean. Plaintiffs seek
summary judgment on both claims, while Defendant Nakatani, as
Director of the State of Hawai‘i Agribusiness
Development Corporation (ADC or the State), seeks summary
judgment on the CWA claim and dismissal of the public trust
claim. Plaintiffs also seek to strike an expert report filed
by the State as part of its summary judgment briefing.
reasons set forth below, Plaintiffs' Motion for Summary
Judgment is GRANTED IN PART as to the CWA claim but DENIED as
to the public trust claim. The State's Motion for Partial
Summary Judgment as to the CWA claim is DENIED, but the
Motion to Dismiss the public trust claim is GRANTED.
Plaintiffs' Motion to Strike is DENIED as moot.
Mānā Plain on Kaua‘i's western coast
contains naturally-occurring wetland areas that have been
drained for agricultural production. Defendant's Concise
Statement of Facts in Support of Motion for Partial Summary
Judgment (Defendant SOF), Dkt. No. 56, ¶1-2;
Plaintiffs' Concise Statement in Opposition to Motion for
Partial Summary Judgment (Plf. Opp. SOF), Dkt. No. 66,
¶2. To drain the area, a system of unlined drainage
canals was built below the natural water table to draw water
out of the wetlands. To avoid water standing in the drainage
canals, pumps were installed to draw water through the
canals, lift the water up and over coastal dunes, and pump it
into the ocean. Id. This drainage system consists of
forty miles of earthen, unlined canals and ditches, two
pumping stations at Kawai‘ele and Nohili, and six
outfalls where water discharges from the canal system into
the Pacific Ocean. Plaintiffs' Concise Statement of Facts
in Support of Motion (Plaintiff SOF), Dkt. No. 52, ¶2.
In addition, in order to discharge water from some of the
outfalls, excavators are used to open sand berms and allow
water from the canals to drain into the ocean. Id.
century-old drainage system, originally built for a sugar
mill operated by the Kekaha Sugar Company (KSC), has been
controlled and managed by ADC since 2001. Defendant SOF
¶5. The 7000-acres of Mānā Plain land
controlled and managed by ADC now contains several
operations, including the Pacific Missile Range and various
commercial facilities. Defendant SOF 3; Plaintiffs'
Motion for Summary Judgment, Dkt No. 51, (Plf. MSJ), at 14.
In addition, the town of Kekaha is located in the
Mānā Plain. Id.
Mānā Plain borders the Pacific Ocean for
approximately nine miles. Plf. MSJ at 8. The adjacent ocean
waters are used extensively for recreation, including for
fishing and swimming. Id., 14. In 2014 and 2018, the
Hawai‘i Department of Health reported to the EPA that
the waters in popular beaches in the area were not meeting
state water quality standards, threatening the designated
uses of the water. Id., Hawai‘i Water Quality
Monitoring Report (2014 and 2018), Ex. 37-38.
CWA and NPDES permits
where authorized by a National Pollutant Discharge
Elimination System (NPDES) permit, the CWA bans the discharge
of pollutants into waters of the United States
(“WOTUS”). The NPDES permit system requires
regulating, monitoring, and public reporting of pollutants
discharged into such waters. 40 C.F.R. §122. The EPA
administers the NPDES permit system but authorizes states
that meet minimum requirements to stand in its shoes. FAC
¶6 (citing 33 U.S.C. §1342; 40 C.F.R. §23.24).
DOH administers the NPDES permitting system in Hawai‘i.
Answer, Dkt. No. 18, ¶18.
2008, the EPA promulgated the Water Transfer Rule (WTR),
which created a new exemption from NPDES permitting
requirements where a water transfer activity (WTA)
“conveys or connects waters of the United States
without subjecting the transferred water to intervening
industrial, municipal, or commercial use” and does not
add pollutants to the water. 40 C.F.R. §122.3(i).
operator of the Mānā Plain drainage ditch system
(the System), KSC obtained an NPDES permit, which regulated
the discharge of pollutants from the System into the Pacific
Ocean. Defendant's Concise Statement in Opposition (Def.
Opp. SOF), Dkt No. 68, ¶9. ADC assumed ownership of the
System and its NPDES permit in 2001, administratively
extending the permit until 2011 when it submitted an NPDES
renewal application. Defendant SOF ¶6; FAC ¶60.
2015, ADC withdrew its application to renew the System NPDES
permit in reliance on the WTR exemption. Id.
¶61. As of August 3, 2015, ADC has been without an NPDES
permit for the drainage ditch system, which continues to
discharge waters into the Pacific Ocean. FAC ¶16; Answer
System collects groundwater and surface waters, including
stormwater from ADC's agricultural tenants and stormwater
and groundwater containing pollutants from ADC's
non-agricultural tenants, and discharges those waters to the
nearshore waters of the Pacific Ocean. Plaintiff SOF
¶14. Several of ADC's tenants who sublicense land
adjacent to the drainage ditches pollute water that enters
the drainage ditch system. Id. 17-20. For example,
Shredco permits runoff containing pesticides from its green
waste material processing operations to enter the drainage
ditch system. Plaintiff SOF ¶18. Another ADC
sublicensee, Pohaku, runs a mining and rock crushing
operation that emits stormwater runoff, which flows into the
System. Plaintiff SOF ¶19.
Kawai‘ele Outfall is the most active of the
System's six. Alone, it discharges millions of gallons of
water every day from the System into the Pacific Ocean.
Plaintiff SOF ¶4. Other System outfalls similarly
discharge into the nearshore marine waters within three miles
of the coast, occasionally requiring the movement of sand
berms by excavator before doing so. Id. at
¶¶4, 13. These discharged waters contain sediment
and sand from the drainage ditch system, as well as chemicals
that seep into the drainage ditch system, including
amniomethylphosphonic acid (AMPA), a degradate of glyphosate;
dichlorodiphenyldichloroethylene (DDE), a degradate of
dichlorodiphenyltrichloroethane (DDT); glyphosate, ametryn,
atrazine, bentazon, chlorpyrifos, cispropiconazole, diuron,
fipronil, hexazinone, MCPA, metolachlor, prometryn, propoxur,
simazine, and trans-propiconazole. Id.
¶¶8-9. These waters also contain phosphorus, metals
(arsenic, barium, cadmium, chromium, copper, lead, mercury,
nickel, silver, zinc), sulfide, phenols, antimony, beryllium,
selenium, thallium, and bis-phthalate. Id. ¶11.
January 16, 2018, Plaintiffs filed a First Amended Complaint
(FAC) alleging violations of the CWA and of the public trust
by ADC. Dkt. No. 9. On April 3, 2019, Plaintiffs
filed a Motion for Summary Judgment (Plf. MSJ). Dkt. Nos.
51-54. On the same day, Defendant filed a Motion for Partial
Summary Judgment and Motion to Dismiss (Defendant MSJ). Dkt.
Nos. 55-58. These Motions have been fully briefed. Dkt. Nos.
65, 67, 71, 72. On May 5, 2019, Plaintiffs filed a Motion to
Strike, for which briefing is also complete. Dkt. Nos. 63,
74, 75. On May 22, 2019, the Court held a hearing on the
cross-motions for summary judgment, Defendant's Motion to
Dismiss, and Plaintiffs' Motion to Strike. Dkt. No. 77.
This disposition follows.
for Summary Judgment
to Federal Rule of Civil Procedure 56(a), a party is entitled
to 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.” The moving
party is entitled to judgment as a matter of law when the
non-moving party fails to make a sufficient showing on an
essential element of a claim in the case on which the
non-moving party has the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In assessing a
motion for summary judgment, all facts are construed in the
light most favorable to the non-moving party. Genzler v.
Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).
Rule of Civil Procedure 12 allows a defendant to move for
dismissal of a claim on the grounds of, inter alia,
lack of subject matter jurisdiction and failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(1), (6). “Although sovereign immunity is only
quasi-jurisdictional in nature, Rule 12(b)(1) is still a
proper vehicle for invoking sovereign immunity from
suit.” Pistor v. Garcia, 791 F.3d 1104, 1111
(9th Cir. 2015). A defendant may, however, be found to have
waived sovereign immunity if it does not invoke its immunity
in a timely fashion and takes actions indicating consent to
the litigation. See id.; Hill v. Blind Indus.
& Servs. of Md., 179 F.3d 754, 760 (9th Cir.),
amended on denial of reh'g, 201 F.3d 1186 (9th
Motion for Summary Judgment
first count alleges ADC has violated the CWA by discharging
pollutants via its drainage ditch system into the waters of
the United States without an NPDES permit since August 2015.
FAC at 1. Plaintiffs further assert that Nakatani, as
director of ADC, ordered ADC to do so. Id. Both
sides have filed cross-motions for summary judgment on this
claim. Dkt. Nos. 51, 55.
asserts that despite the System operating pursuant to an
NPDES permit for decades, no NPDES permit is needed now
because of the Water Transfer Rule. According to the State,
the drainage ditches that comprise the System -- like the
Pacific Ocean -- are Waters of the United States (WOTUS), the
System pumps at Nohili and Kawai‘ele are water transfer
activities (WTA), and the WTR exempts WTAs between two WOTUS
from NPDES permit requirements. Defendant's Opposition to
Plaintiffs' Motion for Summary Judgment (Def. Opp), Dkt.
No. 68, at 19. Plaintiffs do not agree. They respond that (1)
the System is not a WOTUS, and the WTR therefore does not
apply; (2) the WTR does not apply even if the System
transfers water between two WOTUS ...