Wai Ola Alliance, et al. v. United States Department of the Navy

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
WAI OLA ALLIANCE, A PUBLIC
INTEREST ASSOCIATION, ET AL.
Plaintiffs,
vs.
UNITED STATES DEPARTMENT OF THE
NAVY, 	UNITED STATES DEPARTMENT
OF DEFENSE, 	JOINT TASK FORCE
RED HILL, 	UNITED STATES NAVY
REGION HAWAII, 	UNITED STATES
NAVY FACILITIES ENGINEERING
COMMAND - HAWAII,
Defendants.
CIV. NO. 22-00272 LEK-RT
ORDER: GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS;
GRANTING DEFENDANTS’ AMENDED UNOPPOSED REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS OR,
IN THE ALTERNATIVE, STAY PROCEEDINGS (ECF NO. 90);
AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS
OR, IN THE ALTERNATIVE, STAY PROCEEDINGS (ECF NO. 90)
On October 27, 2023, Defendants United States
Department of the Navy (“the Navy”), United States Department of
Defense (“DOD”), Joint Task Force Red Hill (“JTF-RH”), United
States Navy Region Hawaii (“Navy Region Hawai`i”), and United
States Navy Facilities Engineering Command – Hawaii (“Navy
Engineering – Hawai`i” and collectively “Defendants”) filed
their Moton to Dismiss or, in the Alternative, Stay Proceedings
(“Motion”). [Dkt. no. 90.] On December 7, 2023, Defendants filed
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 1 of 30
PageID.<pageID>

2
their Amended Unopposed Request for Judicial Notice in Support
of Motion to Dismiss or, in the Alternative, Stay Proceedings
(ECF No. 90) (“Defendants’ RJN”). [Dkt. no. 102.] On
December 22, 2023, Plaintiffs filed their memorandum in
opposition to the Motion (“Opposition”), 1 and their request for
judicial notice in support of their Opposition (“Plaintiffs’
RJN”). [Dkt. nos. 107, 108.] On January 5, 2024, Defendants
filed their partial opposition to Plaintiffs’ RJN (“Opposition
to Plaintiffs’ RJN”) and their reply in support of the Motion
(“Reply”). [Dkt. nos. 110, 111.] On January 19, 2024, Plaintiffs
filed their reply in support of Plaintiffs’ RJN (“Plaintiffs’
RJN Reply”). [Dkt. no. 116.]
These matters came on for hearing on February 2, 2024.
Defendants filed a supplemental brief on February 9, 2024, and
Plaintiffs filed a supplemental brief on February 14, 2024.
1 The plaintiffs are: Wai Ola Alliance (“the Alliance”); and
individual members of the Alliance, Mary Maxine Kahaulelio,
Clarence Ku Ching, Melodie Aduja, Kim Coco Iwamoto, Peter
Doktor, Steven Hanaloa Helelā, Kalamaokaaina Niheu, Dr. Lynette
Hiilani Cruz, James J. Rodrigues, and Jade Mahina Frank
(collectively “Plaintiffs”). [Second Amended Complaint for
Declaratory Relief and Injunctive Relief, filed 10/13/23 (dkt.
no. 89) (“Second Amended Complaint”), at pgs. 9-11.] “The
Alliance is a community-based organization composed of
environmentally- and culturally-focused individuals and
organizations dedicated to protecting the waters of Hawai`i from
the effects of past and ongoing releases, discharges, and
disposal of petroleum pollutants from [the] Red Hill [Bulk Fuel
Storage Facility] . . . .” [Id. at ¶ 39.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 2 of 30
PageID.<pageID>

3
[Dkt. nos. 122, 123.] On February 16, 2024, an entering order
was issued informing the parties of this Court’s rulings on the
Motion. [Dkt. no. 124.] The instant Order supersedes that
entering order. Defendants’ Motion is hereby granted in part and
denied in part for the reasons set forth below. In addition,
Defendants’ RJN is granted, and Plaintiffs’ RJN is granted in
part and denied in part.
BACKGROUND
Plaintiffs filed their original complaint on June 14,
2022. [Dkt. no. 1.] The operative pleading is Plaintiffs’ Second
Amended Complaint for Declaratory Relief and Injunctive Relief
(“Second Amended Complaint”). In sum, Plaintiffs argue the
Navy’s operation of the Red Hill Bulk Fuel Storage Facility
(“Red Hill” or “the Facility”) 2 “has and will continue to present
imminent and substantial endangerment to health and the
environment through historic, existing, and impending
contamination of the irreplaceable Southern O`ahu Basal Aquifer
(the ‘Aquifer’).” [Second Amended Complaint at ¶ 4.] Plaintiffs
allege the Navy is engaging in conduct that constitutes:
“a. significant ongoing violations of the Resource Conservation
2 Defendants state that Red Hill is on Joint Base Pearl
Harbor-Hickam (“JBPHH”). [Motion, Mem. in Supp. at 1.]
Plaintiffs allege “[t]he Navy is a military department and
instrumentality of the [DOD].” [Second Amended Complaint at
¶ 52.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 3 of 30
PageID.<pageID>

4
and Recovery Act (‘RCRA’), 42 U.S.C. § 6901, et seq.; and
b. significant ongoing violations of the Federal Water Pollution
Control Act (‘Clean Water Act’ [or ‘CWA’]) 33 U.S.C. § 1251, et
seq.” [Second Amended Complaint at ¶ 2.] Specifically,
Plaintiffs allege the Navy is violating:
a. 	the RCRA section 7002(a) prohibition on
conduct that may present an imminent and
substantial endangerment to human health and
the environment, 42 U.S.C. § 6972(a); and
b. 	the Clean Water Act section 301 prohibition
on the unpermitted discharges of pollutants
to waters of the United States, 33 U.S.C.
§ 1311(a).
[Second Amended Complaint at ¶ 3.] Plaintiffs assert each of
them is a “person” under the RCRA, Title 42 United States Code
Section 6903(15), and that they are all “citizens” under the
CWA, Title 33 United States Code Sections 1362(5) and 1365(a),
(g). [Second Amended Complaint at ¶¶ 45-46.] Further, the Navy
and the DOD are persons under the RCRA and the CWA. [Id. at
¶ 54.]
I. 	Factual Allegations
Plaintiffs allege the Navy owns and operates Red Hill.
[Id. at ¶ 55.] Red Hill was constructed between 1940 and 1943,
and it has twenty “‘field constructed’ underground storage tanks
(‘USTs’).” [Id. at ¶¶ 87, 89.] “Each UST has the capacity to
hold 12.5 million gallons of petroleum-based fuel,” [id. at
¶ 105,] and is located approximately 100-200 feet underground,
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 4 of 30
PageID.<pageID>

5
[id. at ¶ 122]. Red Hill has approximately twenty-nine miles of
pipeline that connect the USTs to fueling stations. [Id. at
¶¶ 91, 96.] Red Hill became operational in 1943. [Id. at ¶ 175.]
According to Plaintiffs, Red Hill does not have an operating
permit from either the State of Hawai`i (“the State”) or the
United States Environmental Protection Agency (“EPA”). [Id. at
¶ 124.]
As of April 2022, two of the USTs were not in service
and eighteen were in service, with at least fourteen holding
petroleum-based fuel. [Id. at ¶ 106.] As of the filing of the
Second Amended Complaint, the fourteen USTs “contain[ed] diesel
marine fuel (‘F-76’) and multiple types of jet propellent fuel
(‘JP-5,’ ‘JP-8,’ and ‘F-24’).” [Id. at ¶ 108.]
The USTs are connected to fueling stations at various
piers along Pearl Harbor, 3 including the Hotel Pier, which “is
located immediately south to the mouth of Hālawa Stream,” [id.
at ¶¶ 96-97 (citations omitted),] and the Kilo Pier, which “is
located parallel to and immediately south of Hotel Pier,” [id.
at ¶ 103 (citation omitted)]. The “Hotel Pier is used for both
receipt and issue of fuel.” [Id. at ¶ 99 (citation and internal
quotation marks omitted).] “A 2015 report assessing pipeline
integrity recommended ‘[i]solating and temporarily deactivating
3 Plaintiffs refer to Pearl Harbor as “Pu`uloa.” See Second
Amended Complaint at ¶ 5.
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 5 of 30
PageID.<pageID>

6
or permanently closing the defuel line on the Hotel Pier.’” [Id.
at ¶ 102 (quoting Enter. Eng’g, Inc., Integrity Management Plan
– POL Pipelines NAVSUP FLC Pearl Harbor, HI (PRL) 6 (Interim
Final Submission, 2015)).]
The USTs are approximately 100 feet above the Aquifer,
[id. at ¶¶ 125, 127,] which the Navy has recognized “supplies
potable water to Naval Station (NAVSTA) Pearl Harbor and public
water systems on the island of Oahu, HI,” [id. at ¶ 126 (citing
Naval Audit Service, Audit Report N2010-0049 11 (Aug. 15,
2010))]. Plaintiffs assert “[t]he Aquifer is an irreplaceable
source of fresh water” that is relied upon by approximately
seventy-seven percent of O`ahu residents. [Id. at ¶¶ 130, 132.]
There are multiple potable water wells in the vicinity of Red
Hill that supply water from the Aquifer, including, inter alia,
the Navy’s Red Hill Shaft well 2254-01, the Honolulu Board of
Water Supply’s (“BWS”) Hālawa Shaft well 2354-01, and BWS’s
Moanalua wells 2153-10, 2153-11, and 2153-12. [Id. at ¶¶ 133-
134.c.] “The Red Hill Shaft well is the closest of approximately
five (5) wells in the vicinity of the Red Hill USTs,” and the
Red Hill Shaft well “suppl[ies] water to as many as 93,000
individuals, mostly residents of military housing on and near
JBPHH.” [Id. at ¶¶ 306-07.]
The groundwater level at the Hālawa Shaft is
approximately three feet lower than the level of Red Hill’s
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 6 of 30
PageID.<pageID>

7
USTs, which Plaintiffs argue “demonstrat[es] that the hydraulic
gradient could drive contaminant migration to Hālawa Shaft.”
[Id. at ¶ 135 (citation omitted).] “Since at least 2008, the
Navy acknowledged that cleaning up and/or remediating the impact
of a large spill would be infeasible.” [Id. at ¶ 136 (citing
Naval Facilities Eng’g Command, Red Hill Bulk Fuel Storage
Facility Final Groundwater Protection Plan ES-3 (2008) (“2008
Groundwater Protection Plan”)).]
Pu`uloa is a historically, “spiritually and
politically important place to Hawai`i’s native people.” See id.
at ¶¶ 149-56. It is also navigable waters of the United States.
[Id. at ¶ 157.] Hālawa Stream is considered United States
waters, and it “empties into Pu`uloa south of the Pearl Harbor
National Memorial, and immediately north of Hotel Pier.” [Id. at
¶¶ 167-68.] Hālawa Stream flows through Hālawa Valley, which is
an ahupua`a that is considered sacred by the Kānaka Maoli. [Id.
at ¶¶ 161-66.]
A. 	Fuel Releases
“Petroleum-based fuels have been released to the
environment from Red Hill, including to Red Hill Shaft.” [Id. at
¶ 139.] The released fuels “are composed of a heterogeneous
mixture of chemical constituents,” including “middle
distillates, which include lead, Total Petroleum Hydrocarbons
(‘TPH’), benzene, toluene, ethylbenzene, xylenes, naphthalene,
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 7 of 30
PageID.<pageID>

8
1-methylnaphthalenes, and 2-methylnaphthalenes,” and exposure to
these chemical constituents is harmful to human health. [Id. at
¶¶ 140-42.] Although the Navy does not have complete records for
the period from 1943 to 2017 of spills, leaks, releases, or
discharges of petroleum contaminants (“Release Incidents”), the
Navy’s records show that there were at least seventy Release
Incidents during that period, but the total amount of fuel
released in those incidents is unknown. [Id. at ¶¶ 178-80.] The
State of Hawai`i Department of Health (“DOH”) has found that “it
is ‘more likely than not’ that the Navy has ‘understated the
true number of releases [and] total volume of fuel actually
released’ from the Facility.” [Id. at ¶ 181 (citing Haw. Dep’t
of Health, Hearings Officer’s Proposed Decision and Order,
Findings of Fact, and Conclusions of Law (Dec. 27, 2021) 6
(¶ 25) affirmed by DOH, Final Decision, Order, Findings of Fact,
and Conclusions of Law (Jan. 3, 2022) (“DOH Decision and
Order”)).] In 2014, the Navy recognized that prior releases
“contaminated the fractured basalt, basal groundwater, and soil
vapor beneath the Facility with petroleum hydrocarbons.” [Id. at
¶ 183 (quotation marks and citation omitted).]
“In addition to Release Incidents at the Facility’s
USTs, leaks and spills from the Facility’s pipeline
infrastructure have resulted in contamination of Pu`uloa, Hālawa
Stream, and other surface waters.” [Id. at ¶ 197.] Plaintiffs
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 8 of 30
PageID.<pageID>

9
argue that, “[n]early twenty (20) years after identifying [a]
massive underground plume of petroleum contamination near Hotel
Pier, significant pollution remained on site.” [Id. at ¶ 210.]
In particular, Plaintiffs focus upon: a discharge of
oil to Pu`uloa and Hālawa Stream at Hotel Pier that the Navy
informed DOH about on March 17, 2020 (“2020 Hotel Pier
Discharge”); [id. at ¶¶ 212-53;] a July 16, 2021 petroleum
discharge from a Kilo Pier pipeline into Pu`uloa (“2021 Kilo
Pier Discharge”); [id. at ¶¶ 254-65;] a May 6, 2021 incident
when fuel was released from Red Hill during a tank refueling
(“May 2021 Release Incident”); and a November 20, 2021 incident
when fuel was released from Red Hill (“November 2021 Release
Incident”), [id. at ¶¶ 284-326]. Plaintiffs also argue Red Hill
has insufficient infrastructure and protocols for monitoring and
reporting. See id. at ¶¶ 266-83.
Plaintiffs allege the May 2021 Release Incident and
the November 2021 Release Incident occurred in spite of the fact
that the Navy was purportedly taking actions to comply with the
EPA’s September 28, 2015 Administrative Order on Consent (“2015
AOC”). 4 [Id. at ¶¶ 286, 298.] On November 27, 2021, the Navy
suspended the operation of Red Hill, but it did not publicly
4 The 2015 AOC was issued in In the Matter of Red Hill Bulk
Fuel Storage Facility, EPA DKT NO. RCRA 7003-R9-2015-01, DOH DKT
NO. 15-UST-EA-01. The 2015 AOC is Exhibit A to Defendants’ RJN.
[Dkt. no. 102-1.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 9 of 30
PageID.<pageID>

10
disclose that fact until December 6, 2021. [Id. at ¶¶ 304-05,
315.] “By November 28, 2021, the Navy had received multiple
complaints from residents receiving water from the Navy’s water
distribution system,” such as “petroleum smell, chemical taste,
and oily sheen in tap water.” [Id. at ¶¶ 308, 310.]
309. On November 29, 2021, DOH issued a
public health advisory telling families served by
the Navy’s water distribution system to avoid any
use of water in their home which might expose
them to the contamination . . . .
. . . .
313. On December 1, 2021, testing showed
petroleum contamination in water being
distributed to school children at Red Hill
Elementary, which is served by the Navy’s water
system.
314. On December 2, 2021, the Navy confirmed
that multiple tests had established the presence
of volatile hydrocarbons associated with JP-5 or
diesel fuel in Red Hill Shaft well.
. . . .
319. On December 2, 2021, [BWS] shut down
Hālawa Shaft as a precautionary measure because,
in the words of [BWS] manager and chief engineer
Ernie Lau, water distributed to consumers draws
water “from the same glass” as the Navy’s
contaminated Red Hill Shaft well.
320. By December 10, 2021, [BWS] had
shuttered two additional wells due to fears that
continued pumping could cause migration of the
contaminant plume further into the Aquifer.
[Id. at pgs. 44-45.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 10 of 30
PageID.<pageID>

11
“Since at least November 28, 2021, residents, schools,
businesses, churches, and others served by the Navy’s water
distribution system have been exposed to toxic pollutants.” [Id.
at ¶ 143.] According to Plaintiffs, “[a]pproximately 6,000
people sought medical attention for ailments related to their
exposure between November 20, 2021 and August 9, 2022.” [Id. at
¶ 145.] These ailments included “nausea, stomach cramps,
vomiting, skin rashes, sore throats, burning eyes, difficulty
breathing, and headaches,” and some of these required emergency
medical attention. Id. at ¶ 144; see also id. at ¶¶ 311-12.
In addition to the adverse effects on human health,
“[p]etroleum can be rapidly lethal to fish, birds, mammals, and
shoreline organisms due to the readily dissolved components of
oil and the physical effects of smothering and destruction of
the thermal insulation and buoyancy provided by fur and
feathers.” [Id. at ¶ 169.] Petroleum’s less soluble components
can also cause “[c]hronic and sublethal effects.” [Id. at
¶ 170.]
B. 	State and Federal Response
“On December 6, 2021, DOH issued an Emergency Order
premised on its position that the Facility ‘poses an imminent
and ongoing peril to human health and safety and the
environment.’” [Id. at ¶ 327 (some citations omitted) (citing
Haw. Dep’t of Health, Emergency Order (Dec. 6, 2021) (“12/6/21
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 11 of 30
PageID.<pageID>

12
Emergency Order”)). 5 ] DOH adopted the 12/6/21 Emergency Order in
its January 3, 2022 Final Decision, Order, Findings of Fact, and
Conclusions of Law in Department of Health, State of Hawai`i v.
United States Department of the Navy, Docket No. 21-UST-EA-02
(“1/3/22 Final Order”). See Second Amended Complaint at ¶ 328. 6
The [12/6/21] Emergency Order requires the
Navy take, among others, the following three (3)
actions:
a. 	complete an investigation that is
similar to what was required under the 2015 AOC
to “assess the Facility operations and system
integrity;”
b. 	submit a detailed work plan and
schedule for making repairs to the Facility and
revisions to operating procedures; and
c. 	remove fuel from the Facility. Haw.
Dep’t of Health, [12/6/21] Emergency Order at 4.
[Second Amended Complaint at ¶¶ 329-329.c.] The 12/6/21
Emergency Order does not require that the Navy permanently close
Red Hill. [Id. at ¶ 330.] “On March 7, 2021, the Secretary of
Defense announced that the Red Hill Facility would be defueled
5 The 12/6/21 Emergency Order is Exhibit D to Defendants’
RJN. [Dkt. no. 102-5.]
6 The 1/3/22 Final Order is Exhibit E to Defendants’ RJN.
[Dkt. no. 102-6.] The final order was issued in the contested
case that the Navy brough to challenge the 12/6/21 Emergency
Order. Sierra Club and BWS intervened in the contested case. See
id. at 1.
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 12 of 30
PageID.<pageID>

13
and then closed[,]” 7 but Plaintiffs argue the Secretary of
Defense could unilaterally withdraw the decision to close the
facility. [Id. at ¶¶ 333-34.]
JTF-RH – which reports to the United States Indo-
Pacific Command, a DOD instrumentality - has been assigned the
responsibility for the defueling of Red Hill. [Id. at ¶¶ 58-59.]
Navy Region Hawai`i – an instrumentality of the Navy - has been
assigned the responsibility for the closure of Red Hill. [Id. at
¶¶ 60-61.] Navy Engineering – Hawai`i – an instrumentality of
the Navy – has been assigned the responsibility for
environmental remediation at Red Hill. [Id. at ¶¶ 62-63.]
“On May 6, 2022, DOH issued a new/revised Emergency
Order” (“5/6/22 Emergency Order”). Id. at ¶ 335; see also
Defendants’ RJN, Exh. C (5/6/22 Emergency Order). There was no
administrative challenge to the 5/6/22 Emergency Order. See
Motion, Mem. in Supp. at 7 n.4.
The Navy released its defueling plan on June 30, 2022
(“June Defueling Plan”). Second Amended Complaint at ¶ 373; see
also Defendants’ RJN, Exh. H (June Defueling Plan). According to
Plaintiffs, defueling should be completed, at best, by
7 Exhibit F to Defendants’ RJN is the March 7, 2022
memorandum from the Secretary of Defense to Senior Pentagon
Leadership, Commanders of the Combatant Commands, Defense Agency
and DOD Field Activity Directors directing the Navy to defuel
and permanently close Red Hill. [Dkt. no. 102-7.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 13 of 30
PageID.<pageID>

14
December 1, 2024. [Second Amended Complaint at ¶ 376.] “On
July 19, 2022, DOH rejected the June Defueling Plan, citing the
Navy’s failure to include substance, details, and timelines. DOH
further criticized the plan for failing to fully address any of
the Emergency Order’s minimum requirements.” 8 [Id. at ¶ 377.]
According to Plaintiffs, under the June Defueling Plan, the
defueling process would not be completed until the end of 2028.
[Id. at ¶ 382.]
“On June 2, 2023, U.S. EPA released an administrative
consent order (EPA Dkt. No. RCRA 7003-R9-2023-001, EPA Dkt.
No. PWS-AO-2023-001) (‘2023 Consent Order’) regarding the Red
Hill Bulk Fuel Storage Facility.” [Id. at ¶ 383. 9 ] It “requires
the Navy to submit to U.S. EPA monitoring, defueling, and
closure plans, according to specifications included in an
attached ‘Statement of Work[,]’” but it “does not contain any
requirements specific to remediation of the Aquifer.” [Id. at
¶¶ 388-89.]
8 Exhibit I to Defendants’ RJN is the July 22, 2022 letter
to Rear Admiral Stephen Barnett, from Kathleen S. Ho, DOH Deputy
Director for Environmental Health (“Deputy Director Ho”),
rejecting the June Defueling Plan. [Dkt. no. 102-10.]
9 The Navy filed the 2023 Consent Order in this case.
[Notice of U.S. Environmental Protection Agency Final 2023
Consent Order, filed 6/5/23 (dkt. no. 65), Exh. A (2023 Consent
Order).]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 14 of 30
PageID.<pageID>

15
C. 	Claims in the Instant Case
Plaintiffs argue petroleum fuels and oils that leak or
are spilled from Red Hill constitute “solid waste” for purposes
of the RCRA. [Id. at ¶ 109 (citing 42 U.S.C. § 6903(27); 2015
AOC).] Petroleum fuels and oils that are discharged to surface
waters constitute “pollutants” for purposes of the CWA. [Id. at
¶ 110 (citing 33 U.S.C. § 1362(6)).]
Based on the incidents described supra, Plaintiffs
assert the following claims: a claim under the RCRA alleging
that the Navy created an ongoing, imminent, substantial danger
to health and the environment, in violation of Title 42 United
States Code Section 6972(a) (“Count I”); and a claim under the
CWA alleging that the Navy is committing ongoing, unpermitted
discharges of pollutants, in violation of Title 33 United States
Code Sections 1311(a), 1342, and 1365(a), (f) (“Count II”).
Plaintiffs seek declaratory and injunctive relief
regarding the Navy’s ongoing violations of the RCRA and the CWA
that result from the Navy’s operations at Red Hill. [Id. at ¶ 6
(citing 33 U.S.C. § 1365(a)(1); 42 U.S.C. § 6972(a)(1)(A),
(B)).] Plaintiffs seek an injunction requiring the Navy “to
remedy, reduce, redress, mitigate, and/or offset all adverse
human health, wildlife, and environmental consequences resulting
from contamination of the Aquifer and the surface waters caused
by violations of RCRA and the Clean Water Act.” [Id. at ¶ 13.]
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 15 of 30
PageID.<pageID>

16
Plaintiffs also seek the imposition of civil penalties
for the violations of the CWA, [id. at ¶ 7 (citing 33 U.S.C.
§ 1319(d)),] as well as an award of reasonable attorney’s fees
and costs, [id. at ¶ 14 (citing 42 U.S.C. § 6972(e); 33 U.S.C.
§ 1365(d))].
II. 	Motion
In the instant Motion, Defendants argue this case
should be dismissed pursuant to either the primary jurisdiction
doctrine or the Burford v. Sun Oil, 319 U.S. 315 (1943),
abstention doctrine because of DOH’s and the EPA’s ongoing
regulatory enforcement process regarding Red Hill. In the
alternative, Defendants argue this case should be stayed until
the regulatory enforcement processes have concluded. [Motion at
1-2.] Defendants bring the instant Motion pursuant to Federal
Rule of Civil Procedure 12(b)(6). [Motion, Mem. in Supp. at 1.]
DISCUSSION
I. 	Requests for Judicial Notice
As a general rule, when this Court considers a
Rule 12(b)(6) motion to dismiss, it may only consider the
allegations in the pleadings; consideration of materials beyond
the pleadings converts the motion to dismiss into a motion for
summary judgment. See Khoja v. Orexigen Therapeutics, Inc., 899
F.3d 988, 998 (9th Cir. 2018). Judicial notice under Federal
Rule of Evidence 201 is one exception to this general rule. Id.
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 16 of 30
PageID.<pageID>

17
Judicial notice under Rule 201 permits a
court to notice an adjudicative fact if it is
“not subject to reasonable dispute.” Fed. R.
Evid. 201(b). A fact is “not subject to
reasonable dispute” if it is “generally known,”
or “can be accurately and readily determined from
sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(1)–(2).
Accordingly, “[a] court may take judicial
notice of matters of public record without
converting a motion to dismiss into a motion for
summary judgment.” Lee [v. City of Los Angeles],
250 F.3d [668,] 689 [(9th Cir. 2001)] (quotation
marks and citation omitted).[ 10 ] But a court
cannot take judicial notice of disputed facts
contained in such public records. Id.
Id. at 999 (some alterations in Khoja).
Defendants’ RJN asks this Court to “take judicial
notice of facts identified in their Motion . . . that are
contained in the attached Exhibits.” [Defendants’ RJN at 2.]
Plaintiffs do not oppose Defendants’ RJN. [Id.] Each of
Exhibits A to V of Defendants’ RJN is a publicly available
order, report, statement, press release, plan, or letter,
prepared by or for a state or federal department or agency. See
dkt. nos. 102-1 to 102-23. Plaintiffs have not disputed the
factual statements in the Motion that are taken from Defendants’
Exhibits A to V. This Court concludes that the documents
themselves and the factual statements in the Motion taken from
10 Lee was overruled on other grounds by Galbraith v. County
of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). See,
e.g., Leszczynski v. Kitchen Cube LLC, Case No. 8-23-cv-01698-
MEMF-ADS, 2024 WL 1829620, at *3 (C.D. Cal. Apr. 17, 2024).
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 17 of 30
PageID.<pageID>

18
those documents are matters of public record that are not
subject to reasonable dispute. This Court therefore grants
Defendants’ RJN.
Plaintiffs’ RJN has three exhibits – the EPA’s 2023
Consent Order, previously filed by Defendants; and two documents
that are related to exhibits submitted with Defendants’ RJN.
Defendants do not oppose Plaintiffs’ RJN as to the existence and
authenticity of those documents. [Opp. to Plaintiffs’ RJN at 2.]
This Court concludes that the documents are matters of public
record that are not subject to reasonable dispute. Plaintiffs’
RJN is therefore granted as to the existence and authenticity of
Plaintiffs’ exhibits. Defendants’ Opposition to Plaintiffs’ RJN
identifies ten facts or statements in Plaintiffs’ Opposition
that are based upon the exhibits to Plaintiffs’ RJN. See Opp. to
Plaintiffs’ RJN at 4-9. This Court finds that facts/statements
one through nine, as modified or clarified in Plaintiffs’ RJN
Reply, are not subject to reasonable dispute. This Court
therefore grants Plaintiffs’ RJN as to those facts/statements.
This Court denies Plaintiffs’ RJN as to fact/statement ten for
the reasons stated in Defendants’ Opposition to Plaintiff’s RJN.
In considering Defendants’ Motion, this Court will
consider the documents and the facts/statements that this Court
has taken judicial notice of.
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 18 of 30
PageID.<pageID>

19
II. 	Primary Jurisdiction Doctrine
Defendants argue that, under the primary jurisdiction
doctrine, this Court should “refer” to the EPA’s and DOH’s
regulatory actions regarding the defueling and closure of Red
Hill, i.e. this Court should dismiss or stay the action pending
the completion of the administrative process. [Opp. at 13 & n.8
(citing Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 761
(9th Cir. 2015)).]
The primary jurisdiction doctrine “is a
prudential doctrine under which courts may, under
appropriate circumstances, determine that the
initial decisionmaking responsibility should be
performed by the relevant agency rather than the
courts.” Syntek Semiconductor Co., Ltd., v.
Microchip Tech. Inc., 307 F.3d 775, 780 (9th Cir.
2002). “Primary jurisdiction is properly invoked
when a claim . . . requires resolution of an
issue of first impression, or of a particularly
complicated issue that Congress has committed to
a regulatory agency.” Brown v. MCI WorldCom
Network Servs., Inc., 277 F.3d 1166, 1172 (9th
Cir. 2002). “The doctrine does not require that
all claims within an agency’s purview to be
decided by the agency. Nor is it intended to
‘secure expert advice’ for the courts from
regulatory agencies every time a court is
presented with an issue conceivably within the
agency’s ambit.” Id. (quoting United States v.
Gen. Dynamics Corp., 828 F.2d 1356, 1365 (9th
Cir. 1987)).
Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1291 (9th Cir.
2021) (alteration in Cohen).
In evaluating primary jurisdiction, we consider
“(1) the need to resolve an issue that (2) has
been placed by Congress within the jurisdiction
of an administrative body having regulatory
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 19 of 30
PageID.<pageID>

20
authority (3) pursuant to a statute that subjects
an industry or activity to a comprehensive
regulatory authority that (4) requires expertise
or uniformity in administration.” Syntek, 307
F.3d at 781.
Astiana, 783 F.3d at 760. 11
Congress has placed the general enforcement of the
RCRA in the jurisdiction of the EPA and any applicable state
agency. See, e.g., 42 U.S.C. § 6928(a)(1) (“Except as provided
in paragraph (2), whenever on the basis of any information the
Administrator determines that any person has violated or is in
violation of any requirement of this subchapter, the
Administrator may issue an order assessing a civil penalty for
any past or current violation, requiring compliance immediately
or within a specified time period, or both . . . .”);
§ 6928(a)(2) (“In the case of a violation of any requirement of
this subchapter where such violation occurs in a State which is
authorized to carry out a hazardous waste program under
section 6926 of this title, the Administrator shall give notice
to the State in which such violation has occurred prior to
issuing an order or commencing a civil action under this
section.”); 42 U.S.C. § 6903(1) (“The term “Administrator” means
the Administrator of the Environmental Protection Agency.”). The
11 Astiana has been abrogated in part on other grounds. See,
e.g., Genasys Inc. v. Vector Acoustics, LLC, 638 F. Supp. 3d
1135, 1153 & n.10 (S.D. Cal. 2022).
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 20 of 30
PageID.<pageID>

21
State of Hawai`i has an EPA-approved UST program, operated by
DOH. See generally Haw. Rev. Stat. Chap. 342L; Title 11 Haw.
Admin. R. Chap. 280.1.
Similarly, general civil enforcement of the CWA is
within the jurisdiction of the EPA and any applicable state
agency. See, e.g., 33 U.S.C. § 1319(b) (“The Administrator is
authorized to commence a civil action for appropriate relief,
including a permanent or temporary injunction, for any violation
for which he is authorized to issue a compliance order under
subsection (a) of this section.”); § 1319(a) (stating that, when
the Administrator finds there is a violation of a state-issued
permit, “[i]f beyond the thirtieth day after the Administrator’s
notification the State has not commenced appropriate enforcement
action, the Administrator shall issue an order requiring such
person to comply with such condition or limitation or shall
bring a civil action in accordance with subsection (b) of this
section”); Water Quality Act of 1987 & 33 USC 1251 note, Pub. L.
No. 100-4, 101 Stat 7, § 1(d) (“the term ‘Administrator’ means
the Administrator of the Environmental Protection Agency”). The
State of Hawai`i has assumed the authority to administer the CWA
permit program. See generally Haw. Rev. Stat. §§ 342D-50 to
342D-62; Title 11 Haw. Admin. R. Chap. 55.
However, this Court finds significant the fact that
Plaintiffs bring this action as a citizen suit, and Congress
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 21 of 30
PageID.<pageID>

22
specifically authorized citizen suits through the RCRA and the
CWA. See 42 U.S.C. § 6972(a); 33 U.S.C. § 1365(a). This Court
also notes that the Ninth Circuit has described the citizen suit
provision of the RCRA as “expansive.” Cal. River Watch v. City
of Vacaville, 39 F.4th 624, 629 (9th Cir. 2022) (citation and
quotation marks omitted).
While the defueling and closure of Red Hill and the
associated remediation efforts are unquestionably important to,
and may have a far-reaching impact upon, the people and the
environment of Hawai`i, the legal issues presented by the
instant case are not issues of first impression, nor are the
legal issues so complex that this Court should defer to the
expertise and experience of the regulatory agencies. Thus, if
this Court considered Plaintiffs’ claims, standing alone, this
Court would be inclined to conclude that the primary
jurisdiction doctrine does not apply. However, as a practical
matter, this Court must also consider the extent of the work
that Defendants have already completed through the state and
federal administrative processes, i.e. pursuant to DOH’s 5/6/22
Emergency Order and the EPA’s 2023 Consent Order.
The Ninth Circuit has emphasized that “efficiency is
the deciding factor in whether to invoke primary jurisdiction.”
Astiana, 783 F.3d at 760 (citation and internal quotation marks
omitted). For example, “[c]ommon sense tells us that even when
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 22 of 30
PageID.<pageID>

23
agency expertise would be helpful, a court should not invoke
primary jurisdiction when the agency is aware of but has
expressed no interest in the subject matter of the litigation.”
Id. at 761. In the instant case, although this Court is
competent to decide issues regarding the defueling and closure
of Red Hill, it would be inefficient for this Court to undertake
either review of the defueling process, which Defendants
represented at the hearing was almost complete, or review of the
closure process, which is underway with significant oversight by
DOH and the EPA.
Plaintiffs state they do not intend to interfere with
the efforts that DOH and the EPA are taking to ensure the timely
and safe defueling and closure of Red Hill, but Plaintiffs argue
they must be allowed to proceed with this case because there are
significant issues that are not addressed in either the 5/6/22
Emergency Order or the 2023 Consent Order. For example,
Plaintiffs argue the 5/6/22 Emergency Order and the 2023 Consent
Order do not address CWA violations, nor do they address the
identification of the source of the violations. This Court
agrees with Plaintiffs that the primary jurisdiction doctrine
must not be invoked to preclude the portions of Plaintiffs’
citizen suit which concern matters that are not being addressed
under either the DOH’s 5/6/22 Emergency Order or the EPA’s 2023
Consent Order. However, this Court agrees with Defendants that
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 23 of 30
PageID.<pageID>

24
the primary jurisdiction doctrine applies to the portions of
Plaintiffs’ citizen suit which concern matters that have been,
or are being, addressed under the administrative orders – such
as issues related to the defueling and closure of the Facility.
As to the portions of Plaintiffs’ citizen suit which
concern matters that have been, or are being, addressed under
either the DOH 5/6/22 Emergency Order or the EPA 2023 Consent
Order, this Court concludes that a stay is warranted. This
Court, however, concludes that dismissal is not warranted.
Plaintiffs may move to lift the stay if, for example, the
administrative processes come to completion but leave
unaddressed some of the Facility closure issues that Plaintiffs
have identified in this case.
III. Burford Abstention Doctrine
As to the portions of this case to which the primary
jurisdiction doctrine does not apply, Defendants argue this
Court should abstain under Burford. The United States Supreme
Court has described the Burford doctrine as follows:
Where timely and adequate state-court review is
available, a federal court sitting in equity must
decline to interfere with the proceedings or
orders of state administrative agencies: (1) when
there are “difficult questions of state law
bearing on policy problems of substantial public
import whose importance transcends the result in
the case then at bar”; or (2) where the “exercise
of federal review of the question in a case and
in similar cases would be disruptive of state
efforts to establish a coherent policy with
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 24 of 30
PageID.<pageID>

25
respect to a matter of substantial public
concern.” Colorado River Water Conservation Dist.
v. United States, [424 U.S. 800,] 814 [(1976)].
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 361 (1989) (“NOPSI”). The Supreme Court
subsequently clarified that NOPSI and other cases that
interpreted NOPSI
do not provide a formulaic test for determining
when dismissal under Burford is appropriate, but
they do demonstrate that the power to dismiss
under the Burford doctrine, as with other
abstention doctrines, derives from the discretion
historically enjoyed by courts of equity. They
further demonstrate that exercise of this
discretion must reflect “principles of federalism
and comity.” Growe v. Emison, 507 U.S. 25, 32
(1993). Ultimately, what is at stake is a federal
court’s decision, based on a careful
consideration of the federal interests in
retaining jurisdiction over the dispute and the
competing concern for the “independence of state
action,” Burford, 319 U.S., at 334, that the
State’s interests are paramount and that a
dispute would best be adjudicated in a state
forum. See NOPSI, [491 U.S.] at 363 (question
under Burford is whether adjudication in federal
court would “unduly intrude into the processes of
state government or undermine the State’s ability
to maintain desired uniformity”). This equitable
decision balances the strong federal interest in
having certain classes of cases, and certain
federal rights, adjudicated in federal court,
against the State’s interests in maintaining
“uniformity in the treatment of an ‘essentially
local problem,’” 491 U.S., at 362 (quoting
Alabama Pub. Serv. Comm’n [v. S. Ry. Co.], [341
U.S. 341,] 347 [(1951)]), and retaining local
control over “difficult questions of state law
bearing on policy problems of substantial public
import,” Colorado River, 424 U.S., at 814. This
balance only rarely favors abstention, and the
power to dismiss recognized in Burford represents
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 25 of 30
PageID.<pageID>

26
an “‘extraordinary and narrow exception to the
duty of the District Court to adjudicate a
controversy properly before it.’” Colorado River,
[424 U.S.] at 813 (quoting County of Allegheny
[v. Frank Mashuda Co.], 360 U.S.[ 185,] 188
[(1959)]).
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 727–28 (1996)
(some citations omitted).
Because the remaining portions of Plaintiffs’ citizen
suit raise issues that are not being addressed under either
DOH’s 5/6/22 Emergency Order or the EPA’s 2023 Consent Order,
this Court’s review of those issues would not disrupt the
State’s efforts to establish coherent policy in its programs
under RCRA and the CWA, and this Court’s decision on the
remaining portions of the citizen suit will not intrude upon the
State’s interests. Further, because Congress has expressly
authorized citizen suits under the RCRA and the CWA, and because
the ability to brining citizen suits under the RCRA is
expansive, there is a strong federal interest in having the
remaining portions of Plaintiffs’ citizen suit decided in
federal court. This Court therefore concludes that the Burford
abstention doctrine does not apply to the remaining portions of
Plaintiffs’ citizen suit.
IV. 	Ruling
Neither the primary jurisdiction doctrine nor the
Burford abstention doctrine applies to the portions of
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 26 of 30
PageID.<pageID>

27
Plaintiffs’ citizen suit which concern matters that are not
being addressed through the administrative processes under
either the DOH’s 5/6/22 Emergency Order or the EPA’s 2023
Consent Order. Defendants’ Motion is therefore denied as to
their request to dismiss or stay those portions of the Second
Amended Complaint.
Defendants’ Motion is granted insofar as the portions
of Plaintiffs’ citizen suit which concern matters that have
been, or are being, addressed under through the administrative
processes under either the DOH 5/6/22 Emergency Order or the EPA
2023 Consent Order are stayed under the primary jurisdiction
doctrine. Defendants’ request to dismiss those portions of
Plaintiffs’ citizen suit is denied.
However, having considered the Second Amended
Complaint and the parties’ arguments in connection with the
instant Motion, this Court concludes that the Second Amended
Complaint does not clearly identify the issues that are not
being addressed through the administrative processes under
either DOH’s 5/6/22 Emergency Order or the EPA’s 2023 Consent
Order. For example, although Plaintiffs state they do not intend
to interfere with the ongoing defueling and closure of Red Hill,
the Second Amended Complaint expressly seeks
injunctive relief related to RCRA violations,
pursuant to 42 U.S.C. § 6972(a)(1)(A) and (B),
directing the Navy to:
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 27 of 30
PageID.<pageID>

28
. . . .
b. 	develop a critical path analysis and
comprehensive management plan with deadlines
for timely and safe defueling of the
Facility; and
c. 	develop a critical path analysis and
comprehensive management plan with deadlines
for timely and safe decommissioning and
closure of the Facility.
[Second Amended Complaint at ¶¶ 11.b-c (emphases added).]
This Court therefore DISMISSES Plaintiffs’ Second
Amended Complaint and ORDERS Plaintiffs to file a third amended
complaint that clearly identifies the issues that are not being
addressed through the administrative processes under either the
DOH’s 5/6/22 Emergency Order or the EPA’s 2023 Consent Order.
After the filing of Plaintiffs’ third amended complaint, this
case will proceed as to the issues that are not being addressed
under either DOH’s 5/6/22 Emergency Order or the EPA’s 2023
Consent Order. The remainder of the case will be stayed for a
period of one year from the filing of the third amended
complaint. Defendants will be required to file periodic status
reports regarding their compliance with the 5/6/22 Emergency
Order and the 2023 Consent Order. If warranted under the
circumstances, the stay may be extended beyond the one-year
period or it may be lifted before the end of the one-year
period.
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 28 of 30
PageID.<pageID>

29
CONCLUSION
For the foregoing reasons, this Court rules as
follows:
-Defendants’ Amended Unopposed Request for Judicial Notice in
Support of Motion to Dismiss or, in the Alternative, Stay
Proceedings (ECF No. 90), filed December 7, 2023, is
GRANTED;
-Plaintiffs’ Request for Judicial Notice in Support of Motion to
Dismiss or, in the Alternative, Stay Proceedings (ECF
No. 90), filed December 22, 2023, is GRANTED IN PART AND
DENIED IN PART; and
-Defendants’ Moton to Dismiss or, in the Alternative, Stay
Proceedings, filed October 27, 2023, is HEREBY GRANTED IN
PART AND DENIED IN PART.
Plaintiffs’ Second Amended Complaint for Declaratory
Relief and Injunctive Relief, filed October 13, 2023, is HEREBY
DISMISSED WITHOUT PREJUDICE. Plaintiffs are directed to file
their third amended complaint by June 13, 2024. After the filing
of the third amended complaint, the portions of Plaintiffs’
claims concerning matters that are being addressed through the
administrative processes under either the DOH’s 5/6/22 Emergency
Order or the EPA’s 2023 Consent Order will be STAYED for one
year from the filing of the third amended complaint. This case
will proceed only as to the portions of Plaintiffs’ claims
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 29 of 30
PageID.<pageID>

30
concerning matters that are not being addressed under either the
5/6/22 Emergency Order or the 2023 Consent Order.
Defendants are ORDERED to file their first status
report regarding their compliance with the 5/6/22 Emergency
Order and the 2023 Consent Order by July 15, 2024. After
Plaintiffs file their third amended complaint, deadlines will be
issued for Defendants’ subsequent status reports.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 14, 2024.
WAI OLA ALLIANCE, A PUBLIC INTEREST ASSOCIATION, ET AL. VS.
UNITED STATES DEPARTMENT OF THE NAVY, ET AL; CV 22-00272 LEK-RT;
ORDER: 	GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
TO DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDINGS; GRANTING
DEFENDANTS’ AMENDED UNOPPOSED REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF MOTION TO DISMISS OR, IN THR ALTERNATIVE, STAY
PROCEEDINGS (ECF NO. 90); AND GRANTING IN PART AND DENYING IN
PART PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF
MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY PROCEEDS (ECF NO.
90)
Case 1:22-cv-00272-LEK-RT Document 127 Filed 05/14/24 Page 30 of 30
PageID.<pageID>