Hueter v. AST Telecomm LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII STEVEN JAY PINCUS HUETER CIV. NO. 21-00207 JMS-KJM ET AL.,

ORDER STAYING CASE PENDING Plaintiffs, SATISFACTION OF NOTICE

REQUIREMENTS vs.

AST TELECOMM LLC ET AL.,

Defendants.

ORDER STAYING CASE PENDING SATISFACTION OF NOTICE

REQUIREMENTS I. INTRODUCTION

On April 26, 2021, Plaintiffs Steven Jay Pincus Hueter, Chief Faamuli Pete Faamuli, Michael S. Kirk, and Rosalia Tisa Faamuli (collectively, “Plaintiffs”) filed a Complaint, ECF No. 1, against Defendants AST Telecomm LLC d/b/a Bluesky Communications, the American Samoa Telecommunications Authority, the American Samoa Power Authority, the American Samoa Government, and various individuals employed by these entities (collectively, “Defendants”). And, on April 28, 2021, Plaintiffs filed a Motion for a Temporary Restraining Order (“TRO”) and Preliminary Injunction, ECF No. 9.

Plaintiffs allege claims under the citizen suit provisions of the Endangered Species Act (“ESA”) and the Marine Protection, Research, and Sanctuaries Act (“MPRSA”). While both statutes authorize individuals to bring claims against alleged violators of their provisions, they also mandate that prospective plaintiffs provide written notification of any alleged violations to the alleged violators and appropriate federal agencies at least 60 days prior to commencement of suit. Because it is not clear whether Plaintiffs have complied with these requirements, the case is STAYED until the court receives proof that the requisite notice has been given. Additionally, in order for the Motion for TRO and Preliminary Injunction to be heard, Plaintiffs must provide proof that they have notified Defendants of that Motion pursuant to Federal Rule of Civil Procedure 65.

II. DISCUSSION A. Statutory Notice Requirements

Plaintiffs allege claims pursuant to the citizen suit provisions of the ESA, 16 U.S.C. § 1540(g), and the MPRSA, 33 U.S.C. § 1415(g). Both statutes empower “any person [to] commence a civil suit on his own behalf” to “enjoin any person . . . who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A); see also 33 U.S.C. § 1415(g) (similar).

But, at least sixty days before bringing suit, prospective plaintiffs must provide written notice of the alleged violation to the head of the appropriate federal agency and to the alleged violator. 16 U.S.C. § 1540(g)(2)(A)(i); 33 U.S.C. § 1415(g)(2)(A). As to the alleged violations of the ESA, notice should be given to the Secretary of the Interior.1 16 U.S.C. § 1540(g)(1)(A)(i). And as to the alleged violations of MPRSA, notice should be given to the Administrator of the Environmental Protection Agency (“EPA”).2 33 U.S.C. § 1415(g)(2)(A). This sixty-day notice requirement is jurisdictional. See Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir. 1988). Thus, “failure to strictly comply with the notice

The Complaint contains a box with an “X” next to it, accompanied by the words “Yes – 60 Day Notice Required Prior to Citizen Suit.” ECF No. 1 at PageID # 14. It is unclear whether this is meant to indicate that such notice is required, or that this requirement has been complied with. But, regardless of its meaning, this statement is insufficient to show that the 60-day notice requirement has been satisfied. In order for the case to move forward, Plaintiffs must provide proof that they have complied with this requirement. That is, Plaintiffs must:

(1) Submit evidence showing that they provided written notification of the alleged violations of the ESA to the Secretary of Interior at least 60 days prior to commencement of suit;

(2) Submit evidence showing that they provided written notification of the alleged violations of the MPRSA to the Administrator of the EPA at least 60 days prior to commencement of suit; and

(3) Specify which named Defendants are the alleged violators of these statutes and submit evidence showing that they provided written notification to those parties of each of the alleged violations against them at least 60 days prior to commencement of this suit.

Plaintiffs must make these showings in order for the case to proceed. The case is STAYED until the court receives proof that the statutory notice requirements have been complied with. By May 10, 2021, Plaintiffs are ORDERED to submit proof that they have already fulfilled these requirements; or, if they have not yet fulfilled these requirements, to submit a notice indicating whether and when they intend to do so.

B. Rule 65 Notice Requirements

Separately, Federal Rule of Civil Procedure 65 requires that plaintiffs provide defendants with notice prior to judicial review of motions for TRO or preliminary injunction. See Fed. R. Civ. P. 65(b).3 Here, Plaintiffs have not shown that they provided Defendants with notice of their Motion as required by Rule 65. Thus, in addition to meeting the statutory 60-day notice requirements, Plaintiffs must submit evidence showing that they have provided Defendants with notice of their TRO motion before the court will consider that motion. Additionally, the court will not consider the preliminary injunction component of

Il. CONCLUSION

This case is STAYED pending proof that Plaintiffs have satisfied the ESA and MPRSA’s 60-day notice requirements. Plaintiffs are ORDERED to submit a filing by May 10, 2021, either (1) providing proof that they complied with the 60-day notice requirement; or (2) stating whether they intend to comply with this requirement.

Additionally, Plaintiffs must provide proof that they have notified Defendants of their Motion in order for the TRO request to be heard, and must serve the Complaint and Motion upon Defendants in order for the preliminary injunction request to be heard.

IT IS SO ORDERED.

Dated: Honolulu, Hawaii, April 30, 2021

& /s/ J. Michael Seabright

UP iy J. Michael Seabright

Chief United States District Judge Hueter et al. v. AST Telecomm LLC et al., Civ. No. 21-00207 JMS-KJM, Order Staying Case Pending Satisfaction of Notice Requirements