Reply Brief — County of Maui, Hawaii, Petitioner v. Hawaii Wildlife Fund, et al.

No. 18-260

IN THE

Supreme Court of the United States

————

COUNTY OF MAUI,

Petitioner,

v.

HAWAI‘I WILDLIFE FUND; SIERRA CLUB –

MAUI GROUP; SURFRIDER FOUNDATION;

WEST MAUI PRESERVATION ASSOCIATION,

Respondents.

————

On Petition for Writ of Certiorari

To The United States Court of Appeals

For the Ninth Circuit

————

REPLY BRIEF FOR PETITIONER

————

COUNTY OF MAUI

PATRICK K. WONG

RICHELLE M. THOMSON

200 South High Street

Wailuku, Maui, Hawai‘i 96793

Phone: (808) 270-7740

HUNTON ANDREWS KURTH LLP

MICHAEL R. SHEBELSKIE

Counsel of Record

ELBERT LIN

951 East Byrd Street, East Tower

Richmond, Virginia 23219

mshebelskie@HuntonAK.com

Phone: (804) 788-8200

COLLEEN P. DOYLE

DIANA PFEFFER MARTIN

550 South Hope Street, Suite 2000

Los Angeles, California 90071

Phone: (213) 532-2000

November 6, 2018

Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .....................................

i

TABLE OF AUTHORITIES ................................

ii

REPLY BRIEF FOR PETITIONER....................

1

I. The Court should grant review to resolve the

conflict over the CWA’s line between point

and nonpoint source pollution .......................

1

A. The Ninth Circuit departed from this

Court’s precedent ......................................

1

B. The decision below also conflicts with

every other appeals court that has

decided this issue ......................................

3

C. The conflict should be resolved in this

case ............................................................

5

D. The Ninth Circuit erred below .................

7

II. The expansion of federal permitting is akin

to that in UARG ............................................

9

III. The fair notice ruling directly contravenes

this Court’s precedent .................................

11

CONCLUSION ....................................................

12

(i)

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

Am. Farm Bureau Fed’n v. EPA, 792 F.3d

281 (3d Cir. 2015)......................................

8

Bond v. United States, 564 U.S. 211

(2011), remanded to, 681 F.3d 149

(3d Cir. 2012), rev’d, 572 U.S. 844 (2014) ...

7

Concerned Area Residents for the Env’t v.

Southview Farm, 34 F.3d 114 (2d Cir.

1994) ..........................................................

4

Cordiano v. Metacon Gun Club, Inc.,

575 F.3d 199 (2d Cir. 2009) ......................

3, 4

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009), remanded to,

613 F.3d 317 (2d Cir. 2010), vacated &

remanded by, 567 U.S. 239 (2012) ...........

7

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ................................... 11, 12

Halbig v. Burwell, 758 F.3d 390 (D.C. Cir.

2014) ..........................................................

3

In re E.I. DuPont de Nemours & Co.,

Op. No. 6, 1975 WL 23850 (E.P.A.G.C.

Apr. 8, 1975) ..............................................

9

Kelley ex rel. People of the State of

Michigan v. United States, 618 F. Supp.

1103 (W.D. Mich. 1985) ............................

10

King v. Burwell, 135 S. Ct. 2480 (2015) ......

3

Ky. Waterways All. v. Ky. Utils. Co.,

905 F.3d 925 (6th Cir. 2018) .....................

3

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

550 F.3d 778 (9th Cir. 2008) .....................

1, 5

Peconic Baykeeper, Inc. v. Suffolk County,

600 F.3d 180 (2d Cir. 2010) ......................

4

Rapanos v. United States, 547 U.S. 715

(2006) .........................................................

2

Rice v. Harken Expl. Co., 250 F.3d 264

(5th Cir. 2001) ...........................................

4

Sackett v. EPA, 566 U.S. 120 (2012) ............

1

Sierra Club v. Abston Constr. Co.,

620 F.2d 41 (5th Cir. 1980) .......................

4

South Fla. Water Mgmt. Dist. v.

Miccosukee Tribe of Indians, 541 U.S. 95

(2004) .........................................................

1, 2

Upstate Forever v. Kinder Morgan Energy

Partners, L.P., 887 F.3d 637 (4th Cir.

2018), petition for cert. filed, 87 U.S.L.W.

3069 (U.S. Aug. 28, 2018) (No. 18-268) ....

3, 5

U.S. Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) ...............................

6

Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014) ...............................

9

Vill. of Oconomowoc Lake v. Dayton

Hudson Corp., 24 F.3d 962 (7th Cir.

1994) ..........................................................

4

iv

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES

Page(s)

33 U.S.C. § 1251(a)(1)...................................

5

33 U.S.C. § 1362(14) .....................................

8

FEDERAL REGISTER

83 Fed. Reg. 7126 (Feb. 20, 2018) ................

10

COURT MATERIALS

Compl., Vill. of Oconomowoc Lake v. DaytonHudson Corp., No. CIV. A. 93-C-0797,

1993 WL 668975 (E.D. Wis. Sept. 24,

1993), aff’d, 24 F.3d 962 (7th Cir. 1994) ...

5

Order, 26 Crown St. Assocs., LLC v. Greater

New Haven Reg’l Water Pollution Control

Auth., No. 17-2426 (2d Cir. Aug. 13, 2018) ..

6

Pet. for Reh’g En Banc (Oct. 22, 2018),

Tenn. Clean Water Network v. Tenn.

Valley Auth., 905 F.3d 436 (6th Cir. 2018)

(No. 17-6155) .............................................

3

OTHER AUTHORITIES

EPA, EPA 100-R-93-001, Final Comprehensive State Ground Water Protection

Program Guidance (Dec. 1992), http://ne

pis.epa.gov/Exe/ZyPURL.cgi?Dockey=10

0048T6.TXT...............................................

10

EPA Region V, NPDES Permit No. WI0073059-1, Statement of Basis Briefing

Memorandum; Issuance (Apr. 2011) ........

11

REPLY BRIEF FOR PETITIONER

This case calls out for this Court’s review. The line

in the Clean Water Act (CWA) between point and

nonpoint source pollution is of national importance,

concerning the “organizational paradigm” of a statutory regime, Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

550 F.3d 778, 780 (9th Cir. 2008), that several Justices

of this Court have recognized needs greater certainty,

e.g., Sackett v. EPA, 566 U.S. 120, 133 (2012) (Alito, J.,

concurring). What is more, the courts of appeals and

this Court are indisputably divided, and the consequence of the decision below is a staggering expansion

of federal permitting to activities long regulated under

other state and federal programs.

Respondents assert that review can wait, but their

brief in opposition (BIO) only reaffirms the need for

certiorari. For example, Respondents’ defense of the

decision below hinges entirely on whether the Ninth

Circuit correctly interpreted dictum from a plurality

opinion of this Court. That is something only this Court

can answer, and in all events is a dubious foundation

for a nationwide regulatory regime. Respondents also

urge awaiting the U.S. Environmental Protection

Agency (EPA)—though EPA has not promised any

action and cannot overrule the Ninth Circuit even if it

eventually acts.

I. The Court should grant review to resolve the

conflict over the CWA’s line between point

and nonpoint source pollution.

A. The Ninth Circuit departed from this

Court’s precedent.

In South Florida Water Management District v.

Miccosukee Tribe of Indians, this Court concluded that

the CWA’s text “makes plain” an intuitive, core

2

requirement for point source pollution: it must reach

navigable waters by means of one or more point

sources. 541 U.S. 95, 105 (2004). Point source pollution

turns not on whether a point source “generate[s]”

pollution that reaches navigable waters, but whether

a point source “transport[s]” (or, in the statute’s terms,

“convey[s]”) that pollution. Ibid.

The Ninth Circuit abandoned this bright-line test. It

requires a National Pollutant Discharge Elimination

System (NPDES) permit whenever pollution traceable

to a point source reaches navigable waters in more

than de minimis amounts, even if conveyed into the

navigable waters by a nonpoint source. Contrary to

Miccosukee, this test focuses on whether a point source

generated pollution that reaches navigable waters,

rather than whether a point source transported such

pollution.

Respondents make no effort to square the Ninth

Circuit’s test with Miccosukee, turning instead to the

plurality opinion in Rapanos v. United States, 547 U.S.

715 (2006). But as the Petition explained (at 22-23),

reliance on Rapanos merely underscores the need for

review, irrespective of whether Rapanos actually supports the Ninth Circuit’s departure from Miccosukee.

If the County is right, the Rapanos dictum is fully

consistent with Miccosukee and does not support the

Ninth Circuit. Pet. 21-22; see also Br. Amicus Curiae

Pacific Legal Foundation 4-10. In that case, certiorari

is warranted because the Ninth Circuit has both departed

from Miccosukee and grossly misinterpreted Rapanos.

But certiorari is still warranted if the Ninth Circuit

and Respondents correctly understand Rapanos. In

that circumstance, dictum in a plurality opinion conflicts with, and is being elevated by lower courts over,

3

this Court’s unanimous opinion in Miccosukee. See

Upstate Forever v. Kinder Morgan Energy Partners,

L.P., 887 F.3d 637, 650 n.11 (4th Cir. 2018), petition

for cert. filed, 87 U.S.L.W. 3069 (U.S. Aug. 28, 2018)

(No. 18-268) (suggesting that Rapanos “clarified”

Miccosukee). Only this Court can resolve that tension.

B. The decision below also conflicts with

every other appeals court that has decided

this issue.

As the County’s Supplemental Brief explains, the

Ninth Circuit conflicts with two recent Sixth Circuit

decisions. Respondents speculate (at 18) that the two

courts might reach similar outcomes in certain circumstances. But they cannot, and do not, contest that this

case would come out differently in the Sixth Circuit.

The pollutants here did not “make[] [their] way to a

navigable water . . . by virtue of a point-source conveyance” because, as the Sixth Circuit held unconditionally,

“groundwater is not a point source.” Ky. Waterways

All. v. Ky. Utils. Co., 905 F.3d 925, 934 (6th Cir. 2018).

Noting two pending rehearing petitions, Respondents

downplay the conflict. But only one petition raises this

issue, and the Sixth Circuit has not requested a

response after two weeks. Pet. for Reh’g En Banc (Oct.

22, 2018), Tenn. Clean Water Network v. Tenn. Valley

Auth., 905 F.3d 436 (6th Cir. 2018) (No. 17-6155).

Moreover, even rehearing has not stopped this Court

from stepping in. The Court granted certiorari in King

v. Burwell, 135 S. Ct. 2480 (2015), while the D.C.

Circuit was actively rehearing Halbig v. Burwell, 758

F.3d 390 (D.C. Cir. 2014).

Regardless, the Ninth Circuit conflicts with other

circuits, including the Second. See, e.g., Cordiano v.

Metacon Gun Club, Inc., 575 F.3d 199 (2d Cir. 2009).

4

Respondents assert (at 19) that Cordiano merely held

that a berm “d[id] not meet the definition of a ‘point

source.’” Not so. The “holding [wa]s not that a berm

can never constitute a point source, but only that there

[wa]s insufficient evidence that the migration of lead

from [the] berm by virtue of runoff and airborne dust

[wa]s a point source discharge.” Cordiano, 575 F.3d at

224. The lead did not “reach navigable waters by a

‘discernible, confined and discrete conveyance.’” Ibid.

Concerned Area Residents for the Environment v.

Southview Farm, 34 F.3d 114 (2d Cir. 1994), and Peconic

Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d

Cir. 2010), are consistent. In Concerned Area Residents,

evidence showed that pollution (liquid manure) reached

navigable waters either directly from a point source

(manure-spreading vehicles) or through an intermediary point source (a ditch). 34 F.3d at 118-19; see also

Cordiano, 575 F.3d at 223-24. The question in Peconic

Baykeeper was merely whether spray applicators meet

the definition of “point source.” 600 F.3d at 188-89.

The court did not discuss whether the pollutants had

to, or did, reach navigable waters through a point source.

Contrary to Respondents’ assertion (at 20), the Fifth

Circuit also conflicts with the Ninth. In Sierra Club v.

Abston Construction Co., the court stated unequivocally that a point source must be “the means by which

pollutants are ultimately deposited into a navigable

body of water.” 620 F.2d 41, 45 (5th Cir. 1980). And

Respondents are simply wrong (at 21) that Rice v.

Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001),

“held only that ‘navigable waters’ do not include

groundwater.”

Respondents try (at 22) to reconcile the Seventh and

Ninth Circuits. But Village of Oconomowoc Lake v.

Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), did

5

not concern only a “potential” groundwater connection.

The Complaint alleged that pollutants would, in fact,

migrate via groundwater to navigable waters. Compl.

¶ 50, Vill. of Oconomowoc Lake v. Dayton-Hudson

Corp., No. CIV. A. 93-C-0797, 1993 WL 668975 (E.D.

Wis. Sept. 24, 1993), aff’d, 24 F.3d 962 (7th Cir. 1994).

Finally, the Ninth Circuit differs even from the

Fourth Circuit, though both reached similar outcomes.

In Upstate Forever, the Fourth Circuit adopted EPA’s

“direct hydrological connection” test, 887 F.3d at 651,

which the Ninth Circuit rejected as inconsistent with

the statute, App. 24 n.3. The Ninth Circuit certainly

did not believe it was simply “us[ing] different words”

to articulate the same test. BIO 16 n.6.1

C. The conflict should be resolved in this

case.

The dispute over the difference between point source

and nonpoint source pollution needs immediate resolution. That line is the “organizational paradigm of the

[CWA],” Or. Nat. Desert Ass’n, 550 F.3d at 780, and is

one Congress envisioned would be uniform nationally,

33 U.S.C. § 1251(a)(1) (declaring a “national goal that

the discharge of pollutants into the navigable waters

be eliminated”) (emphasis added). Point source pollution for EPA’s purposes should not mean one thing in

Ohio and another in Oregon while the case law

“further develop[s].” BIO 23.

1

The Fourth Circuit is also deeply divided. Contrary to

Respondents’ claim (at 16-17), the judges in Upstate Forever did

not all “agree” on the hydrological connection theory. The dissenting judge concluded that “a point source must introduce the

pollutant into navigable water from the outside world.” 887 F.3d

at 656 (Floyd, J., dissenting) (internal quotation marks omitted).

Furthermore, a petition for rehearing was closely rejected 7 to 5.

6

Additional lower court decisions are not needed. The

issue is a pure question of statutory interpretation,

and the opposing views have been fully developed.

Indeed, the dispute largely turns on Rapanos, and it is

hard to imagine this Court gaining additional insight

into that opinion from more back-and-forth among the

courts of appeals.2

Nor should this Court further await EPA. Though

Respondents speculate (at 2) that EPA “may provide

additional guidance,” nothing supports that bald conjecture. EPA’s notice promised no additional steps. And

the agency has been silent since the comment period

closed in May 2018, despite the appellate decisions

and petitions for certiorari in the intervening months.

Indeed, the BIO confirms that waiting for EPA will

simply delay this Court’s necessary review. As noted

in the Petition (at 24), and unrebutted by Respondents,

EPA lacks the power to countermand the Ninth Circuit’s

interpretation of unambiguous statutory text. Moreover, the Ninth Circuit and other courts need not accept

EPA’s interpretation of Rapanos. Thus, even if EPA

ultimately promulgates a rule, this conflict will persist

until this Court acts. Meanwhile, individuals and

entities remain subject to the far-reaching decision

below, notwithstanding the concern of several Justices

about the CWA’s “reach and systemic consequences,”

U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct.

1807, 1816 (2016) (Kennedy, J., concurring).

This case is also an ideal vehicle to resolve the

expanding split. The Ninth Circuit’s decision both is

2

The Second Circuit case referenced by Respondents is stayed

for settlement discussions. Order, 26 Crown St. Assocs., LLC

v. Greater New Haven Reg’l Water Pollution Control Auth.,

No. 17-2426 (2d Cir. Aug. 13, 2018).

7

incorrect and squarely presents the question. As

Respondents acknowledge (at 8), there is no dispute

that pollutants: originate from point sources; travel

through groundwater, which is assumed not to be a

point source; and ultimately reach navigable water by

way of the groundwater.3

D. The Ninth Circuit erred below.

Respondents’ defense of the merits of the decision

below fares no better than their other arguments. As

the Petition explained (at 22-31), a bright line between

point and nonpoint source pollution is the only line

consistent with the CWA’s text, structure, and history.

Nothing in the BIO demonstrates otherwise.

On the text, Respondents primarily contend that the

County reads “directly” into the statute. BIO 25-26 &

26 n.11. But this argument is premised on a misreading of Rapanos. Correctly understood, Justice Scalia

meant only that the CWA point source program applies

to both “direct” point-source-to-navigable-water pollution

and “indirect” point-source-to-point-source-to-navigable-

3

Whether the groundwater might nevertheless be a point

source is not a reason to deny certiorari, as Respondents contend

(at 15 n.5). It is sheer speculation that the Ninth Circuit could or

would, if this Court does not decide the question, determine that

the groundwater is a point source. In that event, this Court could

decide then whether to review that determination, which would

conflict with the Sixth Circuit’s categorical conclusion that

groundwater is never a point source. This case is no different from

other cases this Court has decided knowing they could return on

another issue and that, sometimes, did return. See, e.g., FCC v.

Fox Television Stations, Inc., 556 U.S. 502 (2009), remanded to,

613 F.3d 317 (2d Cir. 2010), vacated & remanded by, 567 U.S. 239

(2012); Bond v. United States, 564 U.S. 211 (2011), remanded to,

681 F.3d 149 (3d Cir. 2012), rev’d, 572 U.S. 844 (2014).

8

water pollution. That is fully consistent with the

County’s reading of the text.

It is Respondents and the Ninth Circuit that introduce words into the statute. Using traceability to

define point source pollution has no basis in the CWA’s

text. Like the Ninth Circuit, Respondents draw that

concept (at 26) purely from circuit case law purporting

to define nonpoint source pollution as untraceable

pollution. But that ignores the statutory terms that

specifically define point source pollution as a “discrete

conveyance.” 33 U.S.C. § 1362(14).

As the Petition also explained (at 28-31), non-textual

considerations support a bright-line distinction between

point and nonpoint source pollution. For example, many

other regulatory programs have long addressed nonpoint source pollution. And including nonpoint source

pollution in the NPDES program presents practical

challenges for permit writers and uncertainty for

regulated entities—as confirmed by the state amici,

Br. Amici Curiae State of West Virginia et al. (“State

Amici Br.”) 15, and the very permits Respondents cite.

Respondents counter (at 28) that other regulatory

programs cannot provide “the protections an NPDES

permit would ensure.” This is a policy preference,

however. And Congress has already instructed that

the NPDES program not apply to all forms of water

pollution. Among other things, Congress “assign[ed]

the primary responsibility for regulating . . . nonpoint

sources to the states,” Am. Farm Bureau Fed’n v. EPA,

792 F.3d 281, 299 (3d Cir. 2015), which is why this

case “present[s] concerns of upsetting the federal-state

balance,” BIO 28 (internal quotation marks omitted).

Respondents also make (at 9) the factually inaccurate and legally irrelevant claim that the groundwater

9

discharge has “devastated the once-pristine coral reef.”

The report cited by Respondent does not link coral reef

decline to the County’s effluent, but rather to “complex” causes. Supplemental Excerpts of Record 273.

And some data show an overall increase in coral cover

since 2000. Excerpts of Record 607. Perhaps most

important, even Respondents do not argue that the

groundwater’s effect on navigable water has any bearing on the legal distinction between point and nonpoint

source pollution.

II. The expansion of federal permitting is akin to

that in UARG.

The Court also should grant certiorari because, just

as in Utility Air Regulatory Group v. EPA (UARG),

this case effectuates an “enormous and transformative

expansion” of a federal permitting regime “without

clear congressional authorization.” 134 S. Ct. 2427,

2444 (2014). Respondents answer (at 32) that unlike

in UARG, EPA has a longstanding and consistent

position. This argument fails for several reasons.

First, EPA’s position is not at issue. The Ninth

Circuit rejected EPA’s “direct hydrological connection”

test, App. 24 n.3, adopting instead its own novel test

that extends point source pollution to any pollution

traceable from a point source through any medium to

navigable waters.

Second, Respondents ignore numerous statements

demonstrating inconsistency in EPA’s position. For

example, in 1973, EPA’s Office of General Counsel

opined that “the term ‘discharge of a pollutant’ is

defined so as to include only discharges into navigable

waters,” and that “[d]ischarges into ground waters are

not included.” In re E.I. DuPont de Nemours & Co., Op.

No. 6, 1975 WL 23850, at *3 (E.P.A.G.C. Apr. 8, 1975)

10

(attaching 1973 opinion). In 1985, the government

successfully argued in Kelley ex rel. People of the State

of Michigan v. United States that discharges to groundwater allegedly connected to navigable waters fell

outside the point source program. 618 F. Supp. 1103,

1107 (W.D. Mich. 1985). And in 1992, EPA guidance

explained that “there is no national requirement” to

“incorporate[] ground water discharges into . . .

NPDES permits.” EPA, EPA 100-R-93-001, Final

Comprehensive State Ground Water Protection Program

Guidance, at 1-27 (Dec. 1992).4 The conflict between

these statements and those cited by Respondents is

precisely why EPA asked this year whether to “clarify

its previous statements concerning pollutant discharges to groundwater.” 83 Fed. Reg. 7126, 7128

(Feb. 20, 2018).

Third, the few permits identified by Respondents

hardly show that NPDES permits have been “routinely

issued . . . for indirect discharges via groundwater.”

BIO 3. Were that true, it would surprise the nineteen

states that warn the Ninth Circuit presents “a myriad

of new and technologically challenging NPDES permit

requirements from a novel source of federal liability.”

State Amici Br. 15.

Respondents next assert (at 34) that the decision

below would not significantly increase NPDES permitting. But the Court need not look far for what looms on

the horizon. There are roughly 6,600 UIC wells and

21,000 septic systems in Hawai‘i, where all groundwater migrates toward the ocean. None has required

NPDES permitting, but all fit the fact pattern here.

Moreover, if the Region 5 permit cited by Respondents

(at 30, 34) exemplifies what they consider fair game,

4

http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=100048T6.TXT.

11

even pollutants estimated to take up to 21 years to

migrate through groundwater to navigable waters will

be targeted for NPDES permitting. EPA Region V,

NPDES Permit No. WI-0073059-1, Statement of Basis

Briefing Memorandum; Issuance at 2 (Apr. 2011) (on

file with author).5

III. The fair notice ruling directly contravenes

this Court’s precedent.

Respondents offer no persuasive response to the

Ninth Circuit’s failure to cite, much less follow, FCC v.

Fox Television Stations, Inc., 567 U.S. 239 (2012). Pet.

36-38. Their claim (at 35-36) that the CWA’s plain

language provided adequate notice merely re-asserts

that the Ninth Circuit read the statute correctly. And

Respondents’ answer to the long history of regulatory

inaction is simply to ignore it. Respondents admit

(at 11) that no agency “expressly stated the injection

wells[] . . . require an NPDES permit” until January

2015. But they nowhere acknowledge that both EPA

and the Hawai‘i Department of Health knew since at

least 1973 that injected effluent would “eventually

reach the ocean.” App. 159.

Respondents also contend (at 10, 36-37) that

“Respondents and other Maui citizens” and the district

court’s first summary judgment order gave fair notice.

Not even the Ninth Circuit adopted these arguments,

which are unsupported by any citation. The question

is whether the law, on its face or “as interpreted and

5

Respondents contend (at 34) that general permits could

reduce permitting costs. Even assuming the Ninth Circuit’s factintensive test would be amenable to general permits, that does

not rebut the argument that the Ninth Circuit’s test vastly

increases the facilities subject to NPDES permitting.

12

enforced by the agency,” gave fair notice. Fox, 567 U.S.

at 254. It did not.

CONCLUSION

The Petition should be granted.

Respectfully submitted,

COUNTY OF MAUI

PATRICK K. WONG

RICHELLE M. THOMSON

200 South High Street

Wailuku, Maui, Hawai‘i

96793

Phone: (808) 270-7740

HUNTON ANDREWS KURTH LLP

MICHAEL R. SHEBELSKIE

Counsel of Record

ELBERT LIN

951 East Byrd Street,

East Tower

Richmond, Virginia 23219

mshebelskie@HuntonAK.com

Phone: (804) 788-8200

COLLEEN P. DOYLE

DIANA PFEFFER MARTIN

550 South Hope Street,

Suite 2000

Los Angeles, California 90071

Phone: (213) 532-2000

November 6, 2018

Counsel for Petitioner