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More to the court hearing than reported

As president of Friends of Mahaulepu (FOM), I was very disappointed by TGI’s coverage in the Dec. 2 article, “Legal battle over dairy continues.”

Having attended the federal court hearing on Oahu when the summary judgment motions were argued and having worked as a trial attorney for more than 20 years, I can understand why Hawaii Dairy Farms would try to spin Judge Kobayashi’s 38-page decision of Dec. 2, but it isn’t fair to mislead the public.

Anyone can read the full text of her order under “Breaking News” at http://friendsofmahaulepu.org/. In that order, Judge Kobayashi found that: 1. Hawaii Dairy Farms has and continues to engage in construction activities that require a NPDES (National Pollution Discharge Elimination System) permit; 2. HDF knew this as evidenced by the fact that they had filed for that very permit with the Department of Health which the DOH did not approve; 3. Despite the defendants’ failure to secure the “necessary permit,” defendants continued construction in violation of the Clean Water Act; and further, 4. Judge Kobayashi found that defendants’ contention they were exempt from the “necessary permit” because defendants were engaged in agricultural activities was contrary to established law.

Judge Kobayashi specifically found that defendants’ construction activities before and after the complaint filed by FOM was part and parcel of a common plan of development and not exempt from the necessary permit.

Those findings by the judge will be the findings given to the jury at trial. What remains to be decided is the likely contaminants discharged into the waters of the U.S. and the amount of damages to be awarded.

This was a big win for FOM who have objected to the ongoing construction activities which have included and are not limited to digging their effluent pond and hitting the water table at two feet down from the surface.

It is about using a backhoe to dig trenches for laying potable water lines to 40 of 160 already installed watering troughs, digging wells without a national pollution discharge permit in place.

It is about pulling back the dirt from the ditches that run to waters of the U.S. so HDF could install metal grates across the ditches for the very large muddy wheels of their illegally installed irrigation boom to cross over the ditches that all drain into the Waiopili Stream which cascades across the white sandy beach of Mahaulepu before entering the ocean.

To pollute the waters of the U.S., all HDF has to do is allow dirt to get in the ditches and cause what is called “turbidity.” Turbidity will suffocate the fish and kill our living reef at the mouth of the Waiopili Stream and hurt our endangered water birds.

The court reviewed the testimony of HDF’s farm manager admitting to spraying the entire farm with Roundup multiple times and tilling in the resulting debris leaving all 557 acres of exposed raw dirt so that with any rainstorm would move the contaminants and dirt into the ditches.

There were 32 days of rain reported by the DEIS during their 45-day site inspection for the draft EIS. Even The Garden Island ran pictures in past articles that show the raw dirt fields going right up to the edge of a ditch that had been cleared of all vegetation. These pictures are still available on TGI’s website.

Also a matter of public record, and accessible in a letter to Virginia Pressler, MD, is a picture of an oath signed by Ulupono Project Manager, Kyle Datta, denying commencement of the very construction activities Judge Kobayashi found defendants had engaged in prior to and after FOM filed its’ complaint.

Hopefully this helps to clarify and keep the facts straight.

•••

Bridget Hammerquist is president of Friends of Mahaulepu.

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