Demoruelle v. Kucharski, CIVIL NO. 19-00269 JAO-RT

463 F.Supp.3d 1107

Sandra L. DEMORUELLE, Plaintiff,

v.William KUCHARSKI, et al., Defendants.

CIVIL NO. 19-00269 JAO-RT

United States District Court, D. Hawai‘i.

Signed May 29, 2020

Sandra L. Demoruelle, Naalehu, HI, pro se.

Devin K. Horowitz, Laureen L. Martin, County of Hawaii Office of Corporation Counsel, Hilo, HI, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Jill A. Otake, United States District Judge

Plaintiff Sandra L. Demoruelle ("Plaintiff") contends that the construction and operation of the Ocean View Transfer Station and Recycling Center ("Recycling Center") in Ka‘u, Hawai'i injures two endangered or threatened species—the Hawaiian hawk ("hawk") and the Hawaiian hoary bat ("bat")—in violation of the Endangered Species Act ("ESA"). Plaintiff brings suit against three officials connected to this county project: William Kucharski, the Director of the County of Hawai'i Department of Environmental Management ("DEM"); Gregory Goodale, Division Chief of DEM Solid Waste Division; and Allan Simeon, the Deputy Director of the County of Hawai'i Department of Public Works ("DPW") (collectively, "Defendants"). Presently before the Court are the parties' cross-motions for summary judgment. For the following reasons, the Court DENIES Plaintiff's Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.

I. BACKGROUND

A. Facts¹

Plaintiff resides in Ka‘u, approximately 10 miles from the Recycling Center and 11 miles from Manuka State Wayside Park and Arboretum, and Manuka Natural Area Reserve (collectively, "Manuka"), with Manuka located less than a mile from the Recycling Center. See ECF No. 70-3 ("Third Demoruelle Decl.") ¶ 8; ECF No. 70-7 ("Pl. CSF") ¶¶ 1–2. Plaintiff has used Manuka for religious and recreational activities since 1983, and plans to continue these activities in the future. See Pl. CSF ¶ 1. She chooses to engage in these activities at Manuka because it is the well-known habitat of Hawaiian hoary bats and she enjoys seeing bats and hawks incidental to her religious, recreational, and social activities in this area. See, e.g. , Third Demoruelle Decl. ¶¶ 17, 19. The impetus for this suit arose when, in April 2019, Plaintiff noticed ongoing construction at the Recycling Center site. See, e.g. , ECF No. 70-9 at 6. But the origins of the Recycling Center project—now more than a decade old—are central to this dispute.

Sometime before October 2007, DEM created a Draft Environmental Impact Statement for Ocean View Recycling Point and Convenience Center, Ka‘u District, Hawai'i County ("DEIS"). See ECF No. 70-11 at 1. In November 2007, the United States Fish and Wildlife Service ("FWS") provided comments on the DEIS in accordance with various federal environmental protection laws, including the ESA. See id. FWS's comments noted that, based on information in the DEIS and in FWS's files, including the Hawaii Biodiversity and Mapping Program and the Hawaii GAP Program, "[t]he federally endangered Hawaiian hawk ... and Hawaiian hoary bat ... have been observed in the project vicinity," but the DEIS "does not adequately address the effects" of the project on those two protected species. See id. at 1–2. FWS therefore recommended as follows:

Construction timing was not defined in the DEIS. Construction timing should avoid disturbance to possible nesting Hawaiian hawk (March–August) and breeding and pupping for the Hawaiian hoary bats (April–August).

Lack of information on Hawaiian hoary bats does not equate to no impacts. Without understanding bat utilization of the resources at the proposed project, affects [sic] can not be determined. We recommend that surveys be conducted by a knowledgeable biologist to determine status of the bat within and adjacent to the proposed project footprint.

See id. at 2. In April 2008, DEM responded to FWS by letter. See id. at 3–4. The DEM letter claimed that hawks did not nest in trees on the project site, but "[i]n order to demonstrate this" committed to conducting a pre-construction nest search by a qualified ornithologist if project construction took place between March and August. See id. at 3. With regard to bats, the DEM letter acknowledged they "already know that bats are present in the general area" and so claimed a bat survey would be of no use, but did commit to restrict initial land clearing to periods outside the April to August bat pupping period. See id. at 3–4. The DEM represented that these mitigation efforts were reflected in the Recycling Center's Final Environmental Impact Statement ("FEIS"). See id.

Relevant here, the FEIS, published in The Environmental Notice on April 23, 2008, provides:

[T]he following mitigation measures will be implemented:

In order to prevent impacts to Hawaiian hoary bats and Hawaiian Hawks, DEM will restrict initial land clearing to periods outside the April to August pupping period for Hawaiian hoary bats. Additionally, DEM will arrange a pre-construction nest search by a qualified ornithologist using standard methods if the land clearing occurs within the month of March, the earliest month in the March to August nesting period for Hawaiian Hawks. If Hawaiian Hawks are present, no land clearing will be allowed until at least September.

ECF No. 70-17 at 1; see also Pl. CSF ¶ 17.² The FEIS acknowledges these mitigation efforts were in response to concerns FWS expressed.³ See ECF No. 70-17 at 2. The FEIS explicitly recognizes that "[a] small amount of habitat for native birds and a bat will be removed as part of the project." Id. The FEIS also acknowledges that fire hazard is a secondary biological impact that could reduce the quality of the habitat in the area, but that DEM would mitigate those impacts by constructing a fire break around the facility and providing fire-fighting equipment, including a water tank and fire extinguishers. See id. ; see also ECF No. 70-31 at 3–6.

Over ten years after the FEIS was published, in August 2018, DPW signed the Notice to Bidders for the Recycling Center project and then, in March 2019, a private construction company began work on the project pursuant to a contract with DEM. See Pl. CSF ¶ 18. By March 28, 2019, 24.02% of the work on the project had been completed. See id. At some time—it is unclear from the record when—the contract between DEM and the private construction company was amended to incorporate some of the mitigation measures set forth in the FEIS. See ECF No. 70-20. Specifically, the contract was amended to provide the following limitation on construction: "In order to prevent impacts to Hawaiian hoary bats and Hawaiian Hawks, initial clearing and grubbing activities are restricted to outside the April to August pupping period for Hawaiian hoary bats[.]" Id. The amendments in the record do not mention the need to engage in a hawk nest search before undertaking work in March. See id. Plaintiff requested records that DEM conducted a pre-construction nest search by a qualified ornithologist, as promised in the FEIS, before undertaking land clearing in March. See Pl. CSF ¶ 20. No records were provided, nor have Defendants submitted evidence that any pre-March construction nest search was undertaken. See id. Instead, after Plaintiff filed this suit, Defendants hired someone to conduct a search of the site for bats and hawks. See id. ¶ 25.

On April 19, 2019 Plaintiff observed construction activities, which she contends were violations of the FEIS mitigation measures. See id. ¶ 21; ECF No. 70-9 at 2. And on April 27, 2019, she observed large trees piled at various locations around the project construction site, still with fresh green leaves. See Pl. CSF ¶ 22. Two days later, on April 29, 2019, FWS provided supplemental comments to DEM—noting that FWS was proactively communicating with DEM again because it had recently received correspondence from members of the public about FWS's prior recommendations for the Recycling Project. See ECF No. 99-2 at 73. With regard to bats, FWS observed that they roost in exotic and native woody vegetation across all islands and leave young unattended in trees and shrubs when they forage. See id. at 74. FWS advised that if trees or shrubs 15 feet or taller are cleared during the pupping season, there is a risk that young bats could be harmed or killed because they are too young to fly or may not move away. See id. To minimize impacts to this endangered species, FWS therefore advised: "Do not disturb, remove, or trim woody plants greater than 15 feet tall during the bat birthing and pup rearing season (June 1 through September 15)."⁴ Id. With regard to hawks, the FWS noted that "[l]oud, irregular and unpredictable activities, such as using heavy equipment or building a structure" near nests could cause nest failure. Id. FWS also noted that "[h]arassment of Hawaiian hawk nesting sites can alter feeding and breeding patterns or result in nest or chick abandonment" and that nest disturbance can also increase exposure of chicks and juveniles to inclement weather or predators. Id. at 74–75. To avoid and minimize impacts to hawks, FWS recommended: a biologist familiar with the species conduct a nest search of the project footprint and surrounding areas before completing any work between March 1 and September 30 (with surveys valid only for 14 days); that no clearing or construction occur within 1,600 feet of any active nest during breeding season; and that no trimming or cutting of trees with nests be done at any time. See id. at 75.

The Recycling Center opened on August 17, 2019. See Pl. CSF ¶ 29; ECF No. 70-31 at 2. An investigation conducted on September 6, 2019 by a Fire Inspector with the Fire Prevention Bureau in the Hawaii Fire Department found no fire extinguishers on scene and no water tank installed, contrary to the stated mitigation measures set forth in the FEIS. See ECF No. 70-31 at 10. There is no evidence that FWS or...