_______________________________________ )
Civil No. 92-00263 DAE
PETITION IN PROTEST BY WAIMANALO RESIDENTS, BENEFICIARIES OF THE CONSENT DECREE, and/or MEMBERS OF SIERRA CLUB, or MEMBERS OF HAWAII’S THOUSAND FRIENDS, and MEMBERS OF ENVIROWATCH, INC., THAT THE CONSENT DECREE OF OCTOBER 17, 1995 IS MALFUNCTIONING TO THE PREJUDICE OF WAIMANALO AND CONTRARY TO THE PUBLIC INTEREST IN GENERAL; MEMORANDUM IN SUPPORT OF PETITION; APPENDIX; and AFFIDAVIT OF JOSEPH N. A. RYAN, JR. and CERTIFICATE OF SERVICE.
Come now James R. Andrews, Carroll E. Cox, and Joseph N. A. Ryan ("Petitioners"), each appearing Pro se either as residents of Waimanalo, or beneficiaries or third party beneficiaries of the Consent Decree in this case and as members, past or present, of HAWAII’S THOUSAND FRIENDS, and/or SIERRA CLUB the above-named Plaintiffs, and Members of EnviroWatch, Inc., respectfully show this Honorable Court that the Consent Decree as approved by this Court and entered on October 17, 1995, is malfunctioning to the detriment and prejudice of watershed residents and to the Public Interest in general contrary to the specific findings expressed by the Court in the ORDER APPROVING CONSENT DECREE.
Petitioners and beneficiaries Andrews, Cox, and Ryan allege the Consent Decree has not produced the intended results and has therefore failed in being; (1) fair, adequate and reasonable; (2) consistent with applicable laws; and (3) protective of the public interest. The beneficiaries request the matter be revisited and the Consent Decree be altered to produce more recognizable goals and benefit the public interest.
On May 5, 1992, a citizen’s suit, filed in the United States District Court for the District of Hawaii, under Civil Number 92-00263 DAE, was commenced by Save our Bays and Beaches, Hawaii’s Thousand Friends, Sierra Club, and Surfrider Foundation ("plaintiffs") against the City and County of Honolulu (the "City") alleging violations of the Federal Water Pollution Control Act (the "Clean Water Act"), 33 U.S.C. 1251-1387. The United States District Court, District of Hawaii, held that, among other things, that the City had violated the Clean Water Act a total of 13,792 times between August 1, 1989 and August 31, 1993. The Court further reviewed a Consent Decree agreed to by the plaintiffs and the City and found the Consent Decree to be (1) fair, adequate and reasonable; (2) consistent with applicable laws; and (3) protective of the public interest. The Consent Decree was approved and entered by the Honorable David A. Ezra, United States District Judge, on October 17, 1995.
In support of the aforesaid the above-named petitioners submit justification for our request in Section I and request the Court amend the Consent Decree under Section II. A separate Memorandum in Support of Petition with appendix is attached.
- STANDING
The above mentioned suit was brought, in part, to improve water quality in the district, area, region and watershed in which Petitioners Andrews and Ryan reside. They are direct beneficiaries of the remedy described in the suit. Petitioner Andrews is either a present or past member and/or board member of Hawaii Thousand Friends. Petitioner Ryan is a member or past member of the Sierra Club. Petitioner Cox is President of EnviroWatch, Inc., a non-profit Delaware corporation. Each is also a direct beneficiary of the Clean Water Act and, as beneficiaries of the Act, can rely on the premises of the Act for water quality benefits and on the Court for protection and benefits provided by the Act. Petitioners Andrews, Cox, and Ryan also believe in the integrity of the Justice System and that the failure of the Consent Decree to achieve the goals stated therein reflects in a undesirable manner on the operation of and efficiency of the justice system.
THE CONSENT DECREE PARTIES HAVE FAILED TO ABIDE WITH MANDATED TIME LIMITATIONS.
The Consent Decree called for a non-profit to be named and Requests for Proposals regarding the Technical Report to be issued by January 18, 1997. The non-profit was signed on November 18, 1996. The annual report of the year ending June 1997 indicated the time has begun to toll. Even using this general date, the technical report known as the "Report" in the Consent Decree was due at least by December of 1998. Eugene Dashiell’s "memorandum" of September 1999, and Dr. Laws interview of February 2000, clearly indicate that no "Report" has ever been completed as mandated by the Consent Decree. (See Memorandum in Support of Petition, Section I).
FAILURE TO MAKE AVAILABLE PUBLIC DOCUMENTS AS PER CONSENT DECREE and REFUSAL OF REQUESTS FOR PUBLIC INFORMATION.
The Consent Decree mandates clear public access to the minutes and written reports of KBAC and even provides for free copies of those documents. The KBAC is also mandated by the laws of the State of Hawaii to comply with the Uniform Information Practices Act. KBAC has consistently failed to provide access as a matter of internal policy. (See Memorandum in Support of Petition, Section II).
MISLEADING ANNUAL REPORT: THE ANNUAL REPORT MISLEADS THE WATERSHED COMMUNITIES INTO BELIEVING THE DECREE’S MANDATED TECHNICAL REPORT HAD BEEN COMPLETED.
There is sufficient probable cause to believe that 1) the technical program "Report" was due on or before August 28, 1998; 2) that the council issued Requests for Proposals regarding the Technical Report and hired Susan Miller on or about April 7, 1997 to complete that report; 3) Susan Miller’s report was not sufficient, both from the aspect of the review by Mark (Heckman) and Ed (Laws) and from the continuing actions of the Council, including the hiring of Dashiell and Dashiell’s memorandums, and 4) The Council published its approval of Susan Miller’s submission as a completed Technical Program Report in the June 1998 Annual Report.
The review leads one to believe that the Kaneohe, Kailua and Waimanalo Neighborhood Boards and communities were intentionally mislead into believing that the Consent Decree was being properly followed when, in fact, the Technical Program Report has never been completed or submitted. (See Memorandum in Support of Petition, Section III).
ALIENATION OF COMMUNITY GROUPS AND COMMUNITY MEMBERS
A review of KBAC documents and correspondence released to the Petitioners by past and present council members and other persons indicates that the KBAC had alienated community members, members of the scientific community, and other individuals. KBAC management had become adversarial in its dealings with respected community entities. (See Memorandum in Support of Petition, Section IV).
EXPENDITURE OF KBAC TIME, EFFORT, AND FUNDS ON ISSUES OUTSIDE THE SCOPE OF THE CONSENT DECREE.
The KBAC has authorized expenditures of Consent Decree funds and has allowed the application of those funds, including the services of the Technical Program contractor, for services to private property owners and other programs not directly related to non-point and point source pollution problems in the Kailua, Kaneohe, and Waimanalo watersheds. (See Memorandum in Support of Petition, Section V).
G. FAILURE OF KBAC TO APPOINT REPLACEMENT MEMBERS WITHIN THE THIRTY DAY (30) TIME LIMITATIONS IMPOSED BY THE CONSENT DECREE
The Consent Decree, at Section VII, B., that "[t]he Council shall consist of eight members,. . .." and "[i]f any representative leaves the Council, . . .a replacement shall be appointed within thirty (30) days after written notice of such departure,. . .." No replacements have been appointed and the Council has conducted business without the full representation of volunteers as required by the Consent Decree. (See Memorandum in Support of Petition, Section VI).
FAILURE OF CONSENT DECREE PARTIES, PLAINTIFFS AND DEFENDANTS, TO FILE NOTICE OF NONCOMPLIANCE OR APPLY TO THE COURT FOR STIPULATED AMENDMENTS TO THE CONSENT DECREE
The Consent Decree mandates of issuance of request for proposals for a consultant or consultants to complete the technical program report, the completion and delivery of the Technical Report within eighteen months and seven days of a Notice to Proceed, and the delay of over one year in the production of a "Report," and other significant deficiencies of the KBAC have never been the subject of notices of noncompliance. The KBAC, the Defendants, and the Plaintiffs have also never applied to the Court, who has retained jurisdiction in this matter, with any request to amend the Consent Decree. (See Memorandum in Support of Petition, Section VII).
APPEARANCE OF IMPROPRIETY
The structure of the Consent Decree is such that if the KBAC defaults on the mandates within the Consent Decree the City and County of Honolulu (Defendant) stands to retain one million dollars. Section VII of said Decree dictated payment of 2.1 million dollars to KBAC with a $500,000.00 held in reserve for the Implementation Program and $500,000.00 held in reserve for the Volunteer Water Quality Monitoring Program. The Defendant appears to have structured its appointees to KBAC and created a dependence on employees of the Defendant that are adverse to the Consent Decree and has given the appearance of impropriety. (See Memorandum in Support of Petition, Section VIII).
KBAC MEMBERS HAVE ALLOWED THE COUNCIL TO VIOLATE THE CONSENT DECREE RULE VII, C. BY AWARDING CONTRACTS OR PROVIDING FINANCIAL BENEFIT TO EMPLOYERS
It has already been shown the Christine Woolaway was employed as a Junior Extension Agent of the Sea Grant Extension Service (SGES), a corporation operating under the School of Ocean and Earth Sciences (SOEST) and the Research Corporation of the University of Hawaii (RCUH) umbrella. Dr. Ed Laws is the department Chair of the University of Hawaii, Department of Oceanography, a part of the SOEST. On June 29, 1999, the University of Hawaii thanked Dr. Laws, Acting Chair of KBAC for the grant of $65,083.00 to Dr. Maqsudul Alam of the Microbiology Department for an assessment program. (See Memorandum in Support of Petition, Section IX).
SECTION II.
PETITIONERS REQUEST TO THE COURT TO AMEND THE CONSENT DECREE
The Petitioners respectfully request the Court to disband the Kailua Bay Advisory Council as an entity functioning on the use of funds derived from the Clean Water Act suit brought by the original Plaintiffs. The Petitioners further request that all monies and assets be directed to independent Watershed Councils which operate under and comply with guidelines suggested for watershed councils by the United States Environmental Protection Agency in each of the three watersheds, Kaneohe, Kailua, and Waimanalo.
SECTION III
REQUEST FOR IMPOSITION OF FINES AND REQUEST FOR COSTS AND FEES
The Plaintiffs and the Defendants in this Clean Water Act derived Consent Decree have failed to abide by the provisions of the Consent Decree. The defendants have failed to appoint a community group representative to the council, and 2) make notices of noncompliance for violations of the decree, and/or 3) the plaintiffs, or the defendants, or both have failed to make application to this court for amendment of the consent decree. The Petitioners respectfully request that the Defendant, City and County of Honolulu, be assessed the maximum fine of Five Hundred Dollars a day as set forth in Section VIII, Enforcement, of the Decree, since the initial date of the appointment of Ms. Christine Woolaway to the KBAC and an additional Five Hundred Dollars a day from the date of the Council’s failure to complete the Technical Program Report on or about August 28, 1998, for the Defendant’s failure to issue a notice of noncompliance or request that this Court amend the Consent Decree to a agreement stipulated between the Parties as provided for in the Consent Decree.
The Petitioners further request the imposition of fines on the Plaintiffs’ attorney from the date of the failure to complete the Technical Program Report on or about August 28, 1998, for the Plaintiffs’ failure to issue a notice of noncompliance or request that this Court amend the Consent Decree to a agreement stipulated between the Parties as provided for in the Consent Decree. The Petitioners also request the optional funds in described in sections VII. K. 5. and VII. K. 7 be awarded to the watershed communities for appropriate pollution mitigation strategies together with all accrued interest and also request free and unrestricted distribution and access to all complete and incomplete work products.
Petitioners also request to be made whole by the imposition of costs and fees for the expenses incurred in bringing this unfortunate matter to the attention of this Honorable Court..
Dated this _______ day of February, 2000. Honolulu, Hawaii
_____________________________________
James R. Andrews
___________________________________
Carroll E. Cox
__________________________________
Joseph N. A. Ryan, Jr.
Memorandum in Support of Petition - additional details