Friends of Mahaulepu awarded over $500K

LIHUE — Hawaii Dairy Farms will be coughing up than half a million dollars for attorney fees and court costs, according to a Monday decision by a Hawaii District Court.

In a 71-page order, Judge Kenneth Mansfield awarded $506,328 in attorney fees, expert-witness fees, and costs to Friends of Mahaulepu.

“We welcome the award. It validates that the case we brought had merit,” said Bridget Hammerquist of FOM.

She continued: “Fortunately, Congress recognized that, at times citizens in a community may be forced to file a Clean Water Act violation lawsuit. The award of litigation fees and costs underscores the law’s intent to protect the environment.”

Amy Hennessey, spokeswoman for HDF said the organization is “obviously disappointed in the ruling,” but will abide by the court’s decision.

“At the same time, we remain committed to working toward the goal of increasing local food production,” Hennessey said.

The award followed a consent judgment order entered in May by federal Judge Leslie Kobayashi in a Clean Water Act violation case between HDF and FOM.

The case was filed because HDF began construction of the planned 557-acre dairy without having the necessary permits — specifically a National Pollutant Discharge Elimination System permit.

In addition to the more than half a million dollars in costs and fees, the courts ordered HDF to pay $125,000 to fund a supplemental environmental project for stream-bank restoration and endangered species protection at Makauwahi Cave Reserve.

That was decided in litigation between parties.

“Rather than spend money in a legal battle, we wanted to directly support the community and address the existing contamination in the area being caused by nearby injection wells,” Hennessey told TGI in June.

Part of the $125,000 will also go toward reforesting adjacent uplands and increasing efforts to manage endangered species on adjacent properties.

Though the Clean Water Act violation case between the two entities has been settled, in June Hennessey said the plan was still to “bring the state’s first pasture-based dairy to fruition.”

Members of FOM still believe HDF and its parent company, Pierre Omidyar’s Ulupono Initiative, LLC, are working behind the scenes to establish the dairy, and they point to recent actions that they say prove it.

However, Hennessey says those actions are evidence of a company invested in its community and in participating in the lawmaking process.

In October, Ulupono Initiative submitted comments to the state’s Environmental Council, which is going through an update of Hawaii Administrative Rules.

The testimony centered around revisions to the Hawaii Environmental Policy Act rules that would require responses to all comments within an environmental impact statement, asking for the ability to consolidate like comments and respond accordingly.

“This change would require extensive and pointless paperwork to respond to potentially hundreds of irrelevant comments, and would expose EISs to legal challenge, delaying projects and increasing expenses with no environmental benefit,” Ulupono representatives stated in their comments.

Hammerquist dubbed this “comment-batching,” and said FOM members think it’s a step toward creating an easier atmosphere for a HDF EIS on Kauai in the future.

Hennessey said Ulupono Initiative has joined the conversation around the update of HAR to “provide, for consideration, feedback that allows the decision-makers to update the rules to improve the process for all parties involved in the developmental process.”

“The proposed changes are much larger than Hawai’i Dairy Farms, especially since they affect our state’s ability to advance projects that will help us improve our community in the most environmentally sustainable way,” Hennessey said.

Hammerquist also points to a December symposium the organization is sponsoring, in cooperation with Civil Beat, at the University of Hawaii at Manoa and the William S. Richardson School of Law in Honolulu.

The symposium is directed at skill- and strategy-building for working with public participation in projects — especially as “public discourse has become increasingly polarized and hostile,” according to the symposium agenda.

Hammerquist characterized it as a think-tank session to develop legislation that limits public input on development with the contention that the public is unfairly polarized against development.

“Everybody on the panel is either from the law school, there to help write legislation, or they’re Ulupono contractors,” Hammerquist said. “The only two topics are the 30-meter telescope and the dairy on Kauai.”

However, Hennessey said the goal of the conference is to bring parties together from all aspects of the environmental review process to discuss how to better engage the community.

“Hawaii Dairy Farms is merely one of many examples of projects that are involved in the environmental review process, so we were invited to speak about that experience,” she said.