ROBERT D.S. KIM

A Law Corporation

Attorney At Law

 

ROBERT D.S. KIM 4255-0

77-6400 Nalani Street, Suite A-1

Kailua-Kona, Hawaii 96740

Telephone (808) 329-6611

 

Attorney for Plaintiffs

 

 

             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

Plaintiffs,

 

vs.

 

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, DEPARTMENT OF HEALTH, a Department of the State of Hawaii, STATE OF HAWAII, COUNTY OF HAWAII, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

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Civil No. _______________

(Other Civil Action)

 

PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF WALTER JOHN KELLY; DECLARATION OF CHARLES ROSS FLAHERTY, JR.;  DECLARATION OF MICHELE CONSTANS WILKINS, DECLARATION OF ROBERT D. S. KIM AND EXHIBIT A; NOTICE OF HEARING OF MOTION

 

No trial date set

Approx. Time: 1 hour

Hearing: NOVEMBER 3, 2000

Time:    1:30 p.m.

Judge:   Hon. RONALD IBARRA

 

 

PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

 


COME NOW Plaintiffs WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM AND MICHELE CONSTANS WILKINS ("Plaintiffs"), by and through their attorney, Robert D. S. Kim, a Hawaii law corporation, and move this Honorable Court for a temporary restraining order and preliminary injunction against the above-captioned Defendants only ("Defendants"), enjoining them temporarily and permanently from: 

(1) Importing dirt, fill, gravel and other material to the subject project area; and,

 

(2) Excavating, dredging, bulldozing, or otherwise, moving dirt, fill, gravel and other material on the subject project area; and,

 

(3) Destroying any and all records and documents relating to the transportation of dirt, fill, gravel and other material to the subject project area, the use of fertilizer, and pesticides, and the runoff spill that occurred as alleged herein after; and,

 

(4) Causing any additional pollution and/or alteration of the class AA waters.  This shall require the removal of dirt, fill, gravel and other material from the subject project area; and,

 

(5)  Enjoining any and all construction on the project until State and County governmental agencies can initiate proceedings to revoke and/or modify the existing permits.

 

This Motion is based on Haw. Rev. Stat. Chapter 342D, et seq., and Chapter 607, Hawaii Administrative Rules, Title 11, Department of Health, Chapter 54, Water Quality Standards, Rule 65, Hawaii Rules of Civil Procedure, the Memorandum in Support of the Motion, the Declarations attached hereto, the records and files of the case, and such other and further matters that may arise at the time of the hearing on this Motion.

DATED: Kailua-Kona, Hawaii, __________________.

 

 

___________________________

ROBERT D. S. KIM

 

Attorney for Plaintiffs

 

 

             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

 

Plaintiffs,

 

vs.

 

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

 

 

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Civil No. _______________

(Other Civil Action)

 

MEMORANDUM IN SUPPORT OF MOTION

 

MEMORANDUM IN SUPPORT OF MOTION

 

1.              STATEMENT OF FACTS

 

A. PARTIES/STANDING

Plaintiffs are recreational and commercial users of the pristine Class AA waters located off of, or near to, the subject property in this litigation.  See Complaint filed herein. 

Defendant 1250 OCEANSIDE PARTNERS is the owner of that certain real property located in North and South Kona, Island, County and State of Hawaii, designated and known as Tax Map Key No. (3) 7-9-12:03; (3) 7-9-12:04 and (3) 8-1-04:03  (portion) ("subject property") known herein as the Hokuli'a development project.  See Declaration of Robert D. S. Kim.

2.              THE PROJECT

The Hokuli'a development project is planned as a luxury development including 730 house lots, a 36 hole golf course, and club house located near to the Kealakekua Bay.  This project is currently under major construction. 

C.  THE PERMITS AND REQUIREMENTS

Defendant 1250 OCEANSIDE PARTNERS was required to conform and adhere to the conditions imposed by all applicable permits and governmental approvals, including but not limited to, the NPDES Permit issued by Defendant DEPARTMENT OF HEALTH, pursuant to federal and state law, the Special Management Area Permit, issued and established by Defendant COUNTY OF HAWAII for the grading, use of explosives, and the importation and removal of dirt and soil from the property.

Pursuant to the NPDES Permit issued by Defendant DEPARTMENT OF HEALTH, Form C, entitled "Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity, no sediment discharge into state waters is allowed by Defendant 1250 OCEANSIDE PARTNERS of any top soil brought to the subject property.  A true and correct copy of Form C, entitled "Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity is attached hereto as Exhibit A, and is incorporated by reference herein.

1.         State Law Designates And Protects The Class AA Water As Pristine Areas

 

The ocean waters off of Kealakekua Bay and the subject property are deemed Class AA open coastal waters as presented in Title 11, Chapter 54, Amended Administrative Rules for Water Quality Standards, the highest designation given for water quality which presents pristine conditions.  See HAR ¤¤ 11-54-06(a)(2)(A)(i) and 11-54-06(b)(2)(A)(i).

Pursuant to Title 11, Section 11-54-03(c)(1), as amended, it is the objective of this special designation of Class AA marine waters to insure that these waters remain in their natural pristine state.  No zones of mixing dirt or imported soil shall be allowed to be permitted in this class of waters.

2.         The Developer Was Prohibited From Polluting And/Or Altering The Natural Pristine State Of The Class AA Marine Waters                                

 

Pursuant to the NPDES Permit issued by Defendant DEPARTMENT OF HEALTH, Form C, entitled "Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity", no sediment discharge into state waters would be allowed by Defendant 1250 OCEANSIDE PARTNERS of any top soil brought to the subject property.  See Exhibit A, p. 3.

3.              The Developer Has Violated The Prohibition By Hauling Imported Material That Created An Unlawful Discharge                                       

 

Pursuant to the approval of permits by the State of Hawaii and the County of Hawaii the development project proceeded with construction.  Defendant 1250 OCEANSIDE PARTNERS, by and through its agents, representatives, contractors, employees and/or other individuals, have been engaged in acts of grading, utilizing explosives, and altering the natural terrain of

the subject property from its natural state.

Defendant 1250 OCEANSIDE PARTNERS, by and through its agents, representatives, contractors, employees and/or other individuals, have been engaged in the transporting of tons of dirt and fill from areas other than from the subject property to the subject area.  This imported soil, dirt and/or fill was, and is, being stored in huge mounds on the subject property. 

A.  THE VIOLATION OF WATER QUALITY LAWS/RUNOFF SPILL

On or about September 8-9, 2000, the subject property experienced rainfall which triggered a massive runoff of sediment, dirt, soil and other imported material into the shoreline and other ocean areas of the Class AA marine waters off of the subject property.  See Declarations of WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR.,  and MICHELE CONSTANS WILKINS.

1.  The Run-Off Of Imported Material Was Massive

The eyewitnesses of the aftermath of the spill report a massive and destructive event.  See Declarations of WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., and  and MICHELE CONSTANS WILKINS.  The mud and material dramatically changed the color of the ocean water to a muddy chocolate brown.  See Declarations of WALTER JOHN KELLY and MICHELE CONSTANS WILKINS.

The "slick" of mud and material was observed at one time to be an area approximately a quarter of a mile wide from the sea coast, that extended approximately a quarter of a mile in length or more.  See Declarations of WALTER JOHN KELLY and MICHELE CONSTANS WILKINS.

The runoff from the imported soil was observed being at least having two (2) separate entry points into the ocean, in which the soil had been transformed into mud and entered to pristine ocean due to the rainfall.  See Declarations of WALTER JOHN KELLY.

This runoff of material caused pollution and/or alteration of the natural pristine state of the Class AA marine waters was directly caused by a human-caused source and/or action(s).  See Declarations of WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., and .

2.   The Developer Continues To Haul Vast Amounts of Imported Soil To The Project

 

Despite Defendant 1250 OCEANSIDE PARTNERS's own acknowledgment that the runoff spill occurred on or about September 8-9, 2000, the developer/owner continues to import vast amounts of soil and material to the subject property on a daily basis.  See Declaration of CHARLES ROSS FLAHERTY, JR.

Based on the foregoing factual history, an injunction is required to protect the Plaintiffs, the public and the environment as prayed for.  The law in Hawaii supports Plaintiffs' arguments.

II.  ARGUMENT

1.              GOOD CAUSE EXISTS FOR THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ENJOINING

THE DEFENDANT 1250 OCEANSIDE PARTNERS FROM IMPORTED ADDITIONAL SOIL UNDER THE CURRENT PERMIT AND TO ORDER THE REMOVAL OF ALL IMPORTED SOIL                     

 

Plaintiffs seek the issuance of a Temporary Restraining Order ("TRO"), and a preliminary injunction, temporarily and permanently enjoining Defendant 1250 OCEANSIDE PARTNERS and their agents and representatives from: 

(1) Importing dirt, fill, gravel and other material to the subject project area; and,

 

(2) Excavating, dredging, bulldozing, or otherwise, moving dirt, fill, gravel and other material to the subject project area; and,

 

(3) Destroying any and all records and documents relating to the transportation of dirt, fill, gravel and other material to the subject project area, the use of fertilizer, and pesticides, and the runoff spill that occurred as alleged herein after; and,

 

(4) Causing any additional pollution and/or alteration of the class AA waters.  This shall require the removal of dirt, fill, gravel and other material from the subject project area; and,

 

(5)  Enjoining any and all construction on the project until State and County governmental agencies can initiate proceedings to revoke and/or modify the existing permits; and,

 

(6) Changing the status quo by hauling in additional imported soil and material, as of the filing of this Motion pendent lite; and,

 

This TRO should remain in effect until a hearing on the motion for a preliminary injunction can be heard by this Court.

All of the elements necessary for the issuance of a TRO and preliminary injunction are satisfied or have been met by Plaintiffs.  At a minimum, Plaintiffs request a TRO be issued for a period of ten (10) days.  A formal request for an expedited preliminary injunction hearing is being requested herein.  Issuance of a TRO is appropriate and necessary to protect and the public, pristine natural environment, marine life and Plaintiffs.

1.              Plaintiffs Have Satisfied The Three Prong Test For Injunctive Relief 

 

As a general rule, the essential purpose of a temporary restraining order is to preserve the status quo pending a hearing and a determination of the rights of the parties upon a motion for temporary restraining order or a preliminary injunction.  43 Corpus Juris Secundum Injunctions Section 10 (1978 w/supp.); 7 Moore's Federal Practice, ¦ 65.05 at 65-73 (1984); United States Mine Workers, 330 U.S. 258, 293 (1947); Houghton v. Meyers, 208 U.S. 149, 156 (1908).

The requirements for a TRO are similar to those for a preliminary injunction.  "The modern test for interlocutory injunctive relief is threefold:  (1) Is the party seeking the injunction likely to prevail on the merits?  (2) Does the balance of irreparable damage favor issuance of an interlocutory injunction?  (3) To the extent that the public interest is involved, does it support granting the injunction?"  Penn v. Transportation Lease Hawaii, Ltd., 2 Haw.App. 272, 276, 630 P.2d 646 (Haw.App. 1981)(citations omitted).

Based on the foregoing, it is clear that legal authority exists for the issuance of a TRO and preliminary injunction under the factual history presented herein.

Under the three (3) prong test recognized in Hawaii, "[t]he more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits . . . ."  Likewise, "the greater the possibility the party seeking the injunction is likely to prevail on the merits, the less he has to show that the balance of irreparable damage favors issuance of the injunction."  Id.  (Citations omitted.)  Cf. Hawaii Psychiatric Sac., Dist. Branch v. Ariyoshi, 481 F.Supp. 1028, 1036 (D. Haw. 1979)(preliminary injunction should issue if (1) probable success on merits and possible irreparable harm, or (2) sufficiently serious questions going to merits to make them fair ground for litigation and where the balance of hardships tip decidedly for plaintiff; if the balance of harm tips decidedly for plaintiff, less of a showing is required of the probability of success on merits; if the probability of success on merits is high, less of a showing is required of irreparable harm.)

Each element of the above-mentioned test is analyzed herein below.

1.  Plaintiffs Are Likely To Prevail On The Merits

Plaintiffs probability of success on the merits appears extremely high.   The massive runoff spill was widely reported in the press.  The applicable permits presented herein set forth zero tolerance for any sediment runoff into the Class AA waters by imported soil.                  

Legally, Plaintiffs base their argument on the following precedent and legal authority.

First, The ocean waters off of Kealakekua Bay and the subject property are deemed Class AA open coastal waters as presented in Title 11, Chapter 54, Amended Administrative Rules for Water Quality Standards, the highest designation given for water quality which presents pristine conditions.  See HAR ¤¤ 11-54-06(a)(2)(A)(i) and 11-54-06(b)(2)(A)(i).

Pursuant to Title 11, Section 11-54-03(c)(1), as amended, it is the objective of this special designation of Class AA marine waters to insure that these waters remain in their natural pristine state no zones of mixing dirt or imported soil shall be allowed to be permitted in this class of waters.  This section states in part:

(c) Marine waters.

(1) Class AA.

It is the objective of class AA waters that these waters remain natural pristine state as nearly as possible with an absolute minimum of pollution or alteration of water quality from any human-caused source or actions.  To the extent practicable, the wilderness character of these areas shall be protected.  No zones of mixing shall be permitted in this class:

. . .

 

Pursuant to the NPDES Permit issued by Defendant DEPARTMENT OF HEALTH, Form C, entitled "Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity, no sediment discharge into state waters would be allowed by Defendant 1250 OCEANSIDE PARTNERS of any top soil brought to the subject property.  See Exhibit A, p. 3.

The Notice of Intent specifically recognizes that:

Because the site has never been exposed to chemical sources, the potential for pollution to result from past uses of the site (above natural background levels) is remote.  Potential pollution sources from the operation of the proposed construction activity mainly include sediments contained in storm water runoff generated from the construction site and unlikely accidental releases of petroleum products associated with heavy equipment. 

 

See  Exhibit A, Notice of Intent, p. 1.

 

Pursuant to the above stated permit it specifically states:

 

Topsoil will be brought to the site and placed on the graded areas, and grass will be established in each of these areas.  After construction is complete, lakes will be cleaned of accumulated sediment and then filled with water.  No sediment discharge to state waters from this activity will be allowed.

 

See Notice of Intent, p. 3.

 


Based on the factual history presented herein, the developer clearly violated the prohibition against unnatural sediment discharge into the ocean as to warrant the issuance of a TRO.

3.              The Developer Has Violated The Prohibition By Hauling Imported Material That Created An Unlawful Discharge                                       

 

Pursuant to the approval of permits by the State of Hawaii and the County of Hawaii the development project proceeded with construction.  Defendant 1250 OCEANSIDE PARTNERS, has been engaged in acts of grading, utilizing explosives, and altering the natural terrain of the subject property from its natural state.

Based on the foregoing facts and authority Plaintiffs have an excellent chance of prevailing on the merits in view of the clear violation of the established permits and approvals for the subject property.  Plaintiffs, as shown herein, have satisfied the first test that they are likely to prevail on the merits. 

The second test is also satisfied.

2.              THE BALANCE OF IRREPARABLE DAMAGE FAVORS THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER TO

PRESERVE THE STATUS QUO                             

 

The authorities cited hereinafter disclose that Plaintiffs have no adequate remedy at law to redress enforcement of Title 11, Section 11-54-03(c)(1), as amended, and its stated  objective of protecting the special designation of Class AA marine waters to insure that these waters remain in their natural pristine state no zones of mixing dirt or imported soil shall be allowed to be permitted in this class of waters.

As recreational users of the area, as well as residents of the approximate area, injunctive relief is afforded to them to protect the pristine waters and marine life.  Moreover, the quality of the commercial and recreational value of the protected area requires immediate judicial intervention, until governmental agencies can conclude their investigation and issue the appropriate remedial measures and appropriate sanctions.

1.              The Requested Relief Sought By Plaintiffs Cannot Be Replaced With Monetary Damages As To Deprive

Plaintiffs Of Fair And Reasonable Redress      

 

Under the balance of irreparable harm analysis, a TRO should be issued to preserve the status quo.

"It is recognized that, "[I]njury is irreparable where it is such a character that a fair and reasonable redress may not be had in a court of law."  Penn v. Transportation Lease Hawaii, Ltd., 2 Haw.App. 272, 276, fn.1, 630 P.2d 646 (Haw.App. 1981).

It is further recognized that where monetary damages would be inadequate to compensate the Plaintiffs, an injunction should issue.  Klausmeyer v. Makaha V.F. Ltd., 41 Haw. 287, 340 (Haw. 1956).  In Klaumeyer, the Hawaii Supreme Court held that:

. . . an injury is irreparable, within the law of injunctions, where it is of such a character that a fair and reasonable redress may not be had in a court of law, so that to refuse the injunction would be a denial of justice; where, in other words, from the nature of the act, or from the circumstances surrounding the person injured, or from the financial condition of the person committing it, it cannot be readily, adequately, and completely compensated with money. *** the term Ôirreparable damage' does not have reference to the amount of damage caused, but rather to the difficulty of measuring the amount of damages inflicted . . . .

 

Id. at 340.

 

Plaintiffs are seeking injunctive relief in their Complaint filed herein.  Under the facts of this case, the developer was allowed to import tons of dirt and fill to the subject property provided there was no sediment discharge into the ocean.  This prohibition was violated and constitutes a violation of state pollution laws.  Moreover, such sediment discharge constitutes a public nuisance.

The term "status quo" has been defined as ". . . the last actual, peaceable, noncontested condition which preceded the controversy . . .".  Porter v. K.S. Partnership, 627 P.2d 836 (Montana 1981)(other citations omitted).

In the case of Virginia Chapter, Associated General Contractors of America, Inc. v. Kreps, 444 F.Supp 1167 (USDC Va. 1978), the Court concluded that when considering an application for temporary relief, a court should recognize that:

The balance-of-hardship test correctly emphasizes that, where serious issues are before the court, it is a sound idea to maintain the status quo ante litem [pending litigation], provided it can be done without imposing too expensive an interim burden upon the defendant.

 

Id. at 1182 citing and quoting Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189, 194-195 (4th Cir. 1977).

This Honorable Court is authorized to issue a temporary restraining order based on the cited facts and authorities presented herein.  Plaintiffs argue that the final test for the issuance of an injunction is also satisfied.

3.              THE PUBLIC INTEREST DEMANDS IMMEDIATE ACTION TO PROTECT THE PRISTINE CLASS AA WATERS FROM POLLUTION AND ALTERATION                                            

 

The public interest demands protection of Class AA waters from pollution and alteration consistent with the permit requirements.  This is a constitutionally protected right. 

Our Hawaii State Constitution, provides in Article IX, Section 8, entitled, "Preservation of a Healthful Environment", that, "[t]he State shall have the power to promote and maintain a healthful environment, including the prevention of any excessive demands upon the environment and the State's resources."

Furthermore, Article IX, Section 1, entitled "Public Health" states, "[t]he State shall provide for the protection and promotion of the public health."

Specifically, our Hawai'i State Constitution recognizes the unique, pristine, ocean and marine resources that are vital to our way of life.  Article XI,  Section 6, of the Hawaii State Constitution, states:

 

The State shall have the power to manage and control the marine, seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State, and reserves to itself all such rights outside state boundaries not specifically limited by federal or international law. 

All fisheries in the sea waters of the State not included in any fish pond, artificial enclosure or state‑licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall protect the public's use and enjoyment of the reefs. The State may condemn such vested rights for public use.    

 

 

In addition to the constitutional protections stated above, the Plaintiffs in this case have a constitutional right to seek injunctive relief to protect environmental rights, as recreational users of the subject area.  Article XI, Section 9, entitled, "Environmental Rights" states:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law. (Emphasis added).

 

 

In this case, the protection of the Class AA water is worthy of protection by this Honorable Court.  It is recognized that relief is afforded not only when permits are not obtained, but when the government is unable to respond in a timely manner.

The public has standing to use the courts to enforce laws intended to protect the environment.  Kahana Sunset Owners Ass'n v. Maui County Council, 86 Haw. 132, 948 P.2d 122 (1997). 

In Hawaii, it is clearly recognized that protection of the public is an adequate basis for the issuance of an injunction.  In this case, the continued hauling of imported soil to the subject property is, and was, a nuisance. 

It is recognized that:

. . . [E]quity courts . . . have authority to enjoin acts constituting a nuisance. See In re Debs, supra; Kleinjans v. Lombardi, supra; Auto Rental Co. v. Lee, supra.   The accepted definition of nuisance and public nuisance is set forth in Littleton v. State of Hawaii, 66 Haw. 55, 656 P.2d 1336 (1982), as follows: 

 

A nuisance has been variously defined to mean "that which unlawfully annoys or does damage to another, anything that works hurt, inconvenience, or damage, anything which annoys or disturbs one in the free use, possession, or enjoyment of his property or which renders its ordinary use or physical occupation uncomfortable, and anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights."  58 Am.Jur.2d Nuisances ¤ 1 at 555 (1971).

 

Marsland v. Pang, 5 Haw. App. 463, 489, 701 P. 2d 175 (Haw. App. 1985).

A "public nuisance" is defined as a nuisance in a public place where the public has a legal right to go.  Id.  The runoff as observed by the Plaintiffs is clearly a public nuisance, and Plaintiffs been deprived of their constitutional rights as cited herein.

Our Hawaii Supreme Court, as well as the United States Supreme Court have recognized the importance of the public interest in prohibiting pollution that violates Department of Health regulations.  State v. Kailua Auto Wreckers, Inc., 62 Haw. 222, 233; and at 62 Haw. 689, 615 P. 2d 730 (Haw. 1980) (the United States Supreme Court and courts in other jurisdictions have held corporate officers personally liable irrespective of whether such officers performed or authorized the performance of the unlawful acts) citing United States v. Park, 421 U.S. 658 (1975); United States v. Dotterweich, 320 U.S. 277 (1943); State v. Burnam, 71 Wash. 199, 128 P. 218 (1912); Overland Cotton Mill Company v. People, 32 Colo. 263, 75 P. 924 (1904).

As a matter of important public policy, the Courts have consistently held that protection of the citizens from environmental pollution is of paramount concern as to warrant injunctive relief. 

Our Hawaii State Legislature has recognized on occasion that, "[t]he Legislature finds and declares that the health, safety and general welfare of the people of the State demand the control, reduction, abatement, treatment, elimination, disposal or prevention of air, water, sewage, visual and other pollution; . . .".   State Ex Rel. Amamiya v. Anderson, 56 Haw. 566, 571, 545 P. 2d, 1175 (Haw. 1976) citing Sections 1(a) and (b), Act 161, Session Laws of Hawaii 1973.

Additionally, the 1968 Hawaii Constitutional Convention, Committee on Taxation and Finance reported in part that as a matter of public interest, the aid for the ". . . control of pollution, is as important as, or more so than, the encouraging of industrial development.  Id. at 571 citing  Industrial Development Authority of the County of Pinal v. Nelson, 109 Ariz. 368, 374, 509 P.2d 705, 711 (1973).                  

Therefore, the public interest is clearly involved and the issuance of a TRO is appropriate and required.

III.       CONCLUSION

Based on the foregoing points and authorities, Plaintiff urges this Honorable Court to grant the temporary restraining order until a hearing on the Motion for Preliminary Injunction can be heard, as requested herein, and afford such other and further relief as warranted under the circumstances in the interest of justice and fairness.

DATED:  Kailua-Kona, Hawaii, October 30, 2000.

 

 

_______________________

ROBERT D.S. KIM

 

Attorney for Plaintiffs


                                IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

                                                            STATE OF HAWAII

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

Plaintiffs,

vs.

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

Defendants.

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Civil No. _______________

(Other Civil Action)

 

DECLARATION OF WALTER JOHN KELLY

DECLARATION OF WALTER JOHN KELLY

 

1.    Declarant is a Plaintiff in the above captioned action, is a recreational user of the offshore area near to  "Red Hill", which is immediately adjacent to the Hokuli'a development project, and is authorized to make this Declaration having personal knowledge of the matters set forth herein.

2.    Your Declarant has lived in Honaunau for approximately twelve (12) years, is a independent coffee farmer, and is President of Keoua Honaunau Canoe Club, for the past ten (10) years.

3.   Your Declarant has regularly paddled to the "Red Hill" area, enjoying the pristine, class AA waters as a recreational user of the ocean resources.

4.   Your Declarant has participated in canoe cultural activities in the "Red Hill" area, and has participated in organized canoe races off of the Hokuli'a development project.

5.  Your Declarant's involvement with canoe activities, include, but are not limited to, single (one man) canoes, six man canoes, and sailing canoes in that area adjacent to the Hokuli'a development project.

6.  On or about September 8, 2000, your Declarant, as President of the Keoua Honaunau Canoe Club, received reports from concerned members of the Kai Opua Canoe Club, who were first on the scene, that a significant soil runoff had taken place after a rain storm in that area adjacent to the Hokuli'a development project.

7.  Your Declarant upon hearing this information personally visited that area in that area adjacent to the Hokuli'a development project, on or about September 9, 2000, at approximately 3:00 p.m.

8.  Your Declarant traveled to this area via motor boat, and personally observed that the soil runoff had changed the color of the ocean water to a muddy chocolate brown.

9.   On this date, your Declarant observed an area approximately a quarter of a mile wide from the sea coast, that extended approximately a quarter of a mile in length.

10.  Your Declarant personally observed at least two (2) separate entry points into the ocean, in which the soil had been transformed into mud and entered onto pristine ocean.

11.  Your Declarant could still see the mud sticking to the rocky coast at the entry points which was a height of approximately ten (10) feet in height.

12.  Your Declarant personally observed in the waters immediately adjacent to the coast line and extending out to sea, dirty foamy brown waters, which contained debris which included sticks, branches, particles of red soil, and other material transported by the muddy runoff.

13.   Your Declarant has regularly paddled in this area for the past ten (10) years, and has never witnessed any pollution or discoloration or muddy runoff.

14.   Instead, the waters located of the Hokuli'a development project were always pristine and otherwise clear.

15.   Your Declarant when observing the muddy soil slick, could not see even one (1) foot into the ocean water.

16.   Your Declarant was deeply sickened by the devastation caused to this otherwise pristine coastline.

         I declare that the foregoing is true and correct to the best of my knowledge under penalty of perjury.

         Dated: Kailua-Kona, Hawaii, October 30, 2000.

 

______________________________

WALTER JOHN KELLY

 

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

STATE OF HAWAII

 

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

 

Plaintiffs,

 

vs.

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

 

Defendants.

 

 

 

______________________________
  

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Civil No. _______________

(Other Civil Action)

 

DECLARATION OF CHARLES ROSS FLAHERTY, JR.

 

DECLARATION OF CHARLES ROSS FLAHERTY, JR.

 

1.    Declarant is a Plaintiff in the above captioned action, who is an environmentalist, who has an interest in property near to the Hokuli'a development project, who regularly is a recreational user of the offshore area in Kealakekua Bay  and is authorized to make this Declaration having personal knowledge of the matters set forth herein.             2.    Your Declarant has lived in Kealakekua for approximately four (4) years, is a retired Certified Public Accountant, and is currently recovering from AIDS, who moved to Kealakekua for its pristine environment and to benefit from traditional Hawaiian healing modalities, such as lomilomi, la'au lapa'au, and ho'oponopono.

3.   Your Declarant regularly swims and kayaks in Kealakekua Bay and adjacent areas, for the health benefits of the pristine class AA waters, and as a recreational user of the ocean resources.

4.   Your Declarant resides adjacent to the equipment construction access road for the Hokuli'a development project.

5.   Your Declarant has personally observed heavy trucks transporting imported soil to the Hokuli'a development project, which activity continues to this day.

6.    On or about September 9, 2000, your Declarant learned from Walter John Kelly that a significant amount of soil had entered the ocean as runoff as a direct result of overnight rainfall.

7.    In the week immediately following the runoff, your Declarant personally observed a significant increase in the number of heavy trucks that were transporting imported soil to the Hokuli'a development project.

8.    Your Declarant was cognizant of the increase of heavy truck activity due to the fact that your Declarant had previously complained to a state agency prior to September 9, 2000 to complain about the noise levels being generated by the construction traffic on the steeply graded construction access road and the hours of operation.

9.    Your Declarant believes that the soil runoff from the Hokuli'a development project will adversely impact the pristine water of Kealakekua Bay and adjacent areas, and as a result will adversely impact your Declarant's attempts to recover from AIDS.

I declare that the foregoing is true and correct to the best of my knowledge under penalty of perjury.

         Dated: Kailua-Kona, Hawaii, October 30, 2000.

 

______________________________

CHARLES ROSS FLAHERTY, JR.

             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

Plaintiffs,

 

vs.

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

Defendants.

______________________________

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Civil No. _______________

(Other Civil Action)

 

DECLARATION OF MICHELE CONSTANS WILKINS

 

DECLARATION OF MICHELE CONSTANS WILKINS

 

1.    Declarant is a Plaintiff in the above captioned action, is a recreational user of the offshore area near to "Red Hill", which is immediately adjacent to the Hokuli'a development project, is an employee of a scuba diving shop "Jack's Diving Locker", and is authorized to make this Declaration having personal knowledge of the matters set forth herein.

2.    Your Declarant has lived in Kona for approximately one (1) year, is an advanced open water certified diver.

3.   Your Declarant is employed as noted above in the business of diving tours.

4.  On or about September 9, 2000, your Declarant embarked on a scuba diving trip in the area immediately offshore of the Hokuli'a development project.

5.  Your Declarant traveled to this area via motor boat, and personally observed that the soil runoff had changed the color of the ocean water to a muddy brown which extended approximately a mile in length and several hundred yards wide.

6.   On this date, your Declarant observed a "mud slick" from the surface of the water, and thereon dived beneath the surface with scuba equipment along with other divers, being David Maddox, Kawika Leicher, Andrea Leicher, Greg McLaughlin and Janice McLaughlin.

7.  Your Declarant personally observed the muddy "silt" from the surface to the bottom of the ocean in depths of thirty (30) feet of water.  This silt was reddish brown in color.

8.  Your Declarant swam underwater near to the coastline and out to deeper waters, and personally observed vast amounts of silt in an area of approximately a hundred of square feet.

9.  Your Declarant personally observed from the boat, in the waters immediately adjacent to the coast line and extending out to sea, dirty foamy brown waters, which contained debris which included sticks, branches, particles of red soil, and other material.

10.   Your Declarant when observing the muddy soil slick, could not see even one (1) foot into the ocean water.

11.   Your Declarant later returned to an area immediately adjacent to the north of the first dive area, approximately two (2) weeks later.

12.  During this second underwater scuba trip your Declarant personally observed numerous large patches of brownish colored silt which had settled on the bottom of the ocean floor.

         I declare that the foregoing is true and correct to the best of my knowledge under penalty of perjury.

         Dated: Kailua-Kona, Hawaii, October 30, 2000.

 

______________________________

MICHELE CONSTANS WILKINS

  

      IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 


WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

Plaintiffs,

 

vs.

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

Defendants.

______________________________

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Civil No. _______________

(Other Civil Action)

 

DECLARATION OF ROBERT D. S. KIM AND EXHIBIT A

 

DECLARATION OF ROBERT D. S. KIM

 

          1.  Declarant is an attorney licensed to practice law in the State of Hawaii, is the attorney for the Plaintiffs in the above captioned action, is authorized to make this declaration, having personal knowledge of the matters set forth herein.

          2.  Your Declarant has reviewed permits and documents that reveal that Defendant 1250 OCEANSIDE PARTNERS is the owner of that certain real property located in North and South Kona, Island, County and State of Hawaii, designated and known as Tax Map Key No. (3) 7-9-12:03; (3) 7-9-12:04 and (3) 8-1-04:03  (portion) ("subject property") known herein as the Hokuli'a development project.

3.   Attached hereto as Exhibit A is a true and correct copy of Form C, entitled "Notice of Intent (NOI) for Discharges of Storm Water Associated With Construction Activity.

         I declare that the foregoing is true and correct to the best of my knowledge under penalty of perjury.

         Dated: Kailua-Kona, Hawaii, October 30, 2000.

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______________________________

ROBERT D. S. KIM

 

 


             IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

 

                          STATE OF HAWAII

 

WALTER JOHN KELLY, CHARLES ROSS FLAHERTY, JR., PATRICK M. CUNNINGHAM, AND MICHELE CONSTANS WILKINS,

Plaintiffs,

vs.

OCEANSIDE 1250 PARTNERS, a Hawaii Limited Partnership, JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS or OTHER ENTITIES 1-20,

Defendants.

______________________________

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Civil No. _______________

(Other Civil Action)

 

NOTICE OF HEARING ON MOTION

 

NOTICE OF HEARING ON MOTION

 

TO THE ABOVE NAMED DEFENDANTS:

 

          PLEASE TAKE NOTICE that the undersigned will bring the foregoing Motion on for hearing before the Judge of the above-entitled Court, in his courtroom in the Keakealani Building (Old Kona Hospital), located in Kealakekua, Hawaii, on November 3, 2000, at 1:30 p. m., or as soon thereafter as counsel may be heard.

          DATED:  Kailua-Kona, Hawaii, October 30, 2000

 

 

_________________________

ROBERT D.S. KIM

 

Attorney for Plaintiffs