Judge says Cane Burning Lawsuit Can Go Forward

What happened in court today (Feb 5, 2016):

Judge Cardoza dismissed Counts I and II. Count I claimed that HRS 342B, the Air Pollution Control Act, and HAR 11-60.1, the implementing regulations, constituted an unlawful delegation of legislative power. Judge Cardoza concluded that as a matter of law, the delegation of power was lawful.

Count II claimed that HRS 342B violated the Art XI, Sec 9 of the Hawaii State Constitution. We relied on the Ala Loop Owners case which recognizes a private right of action to enforce environmental statutes based upon Art XI, Sec 9. He held, however, that that private right of action to enforce does not include invalidating statutes.

He also indicated that potentially these two dismissed claims could be modified and submitted anew for his consideration.

He ruled that A&B’s argument that Counts III, IV and V must be submitted to the Department of Health for resolution first and our failure to exhaust those administrative remedies barred the claims was erroneous because these counts implicated matters of law and not technical fact finding. Matters of law are for the courts to decide. He ruled we didn’t need to exhaust remedies. He ruled the court can and will decide whether the DOH breached the public trust and whether it failed to consider the Hawaii Environmental Policy Act without requiring us to go to DOH first.

Count III is the claim that the Department of Health has violated its public trust duties by issuing agricultural burn permits. Count IV claims that the issuance of burn permits violates the equal protection section of the state constitution. Count V claims that the Director of Health was required but failed to consider HRS 344, the Hawaii Environmental Policy Act, when she adopted the open air agricultural burn permit rules.

He also ruled that we are not challenging the EPA approved State Implementation Plan and therefore the federal Ninth Circuit Court of Appeals’ original, exclusive jurisdiction over challenges to the SIP did not apply to Counts III, IV and V.

As to Count VI, he ruled that the question of the 120 day statute of limitations (related to whether the lawsuit was brought within that window) to challenge the lack of an environmental assessment was fact specific and the operative facts regarding when the 120 days was triggered could not be resolved in a motion to dismiss — which only looks at the law.

He then indicated that insofar as the lawsuit challenges all open air agricultural burning, the other 144 permit holders are necessary parties the case. He has given us until February 16 to decide whether to amend the complaint to avoid the interests that make them necessary parties or to come up with a plan to at least give notice to the 144 permit holders that the regulations that authorize their permits are being challenged.

The case will continue and the hearing for the motion for preliminary injunction will be heard on February 26.

Our next big deal is Feb 26 when Judge Cardoza will hear arguments on our request for an injunction to stop burning. Things are heating up and we really, really need $$$. How much money determines how aggressively we can go after A&B (e.g. take their depositions to uncover all their bad actions)

Read the Maui News Article on A&B’s Motion to Dismiss