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Kauai to use pro-bono attorneys to fight GMO suit

By Jennifer Sinco Kelleher

Associated Press

LAST UPDATED: 1:10 p.m. HST, Jan 13, 2014

Kauai County will be taking law firms up on their offers for free legal help defending an ordinance regulating the use of pesticides and genetically modified crops by large agricultural businesses.

While the bill was going through the process of being passed, several firms offered attorneys to fight legal challenges, county spokeswoman Beth Tokioka said.

The county will be soliciting those pro-bono services now that three biotech companies have filed a lawsuit in federal court seeking to block the county from implementing the law when it goes into effect in August.

"We have been told repeatedly that such a legal challenge would be filed, even as early as last summer during the first public reading of Bill 2491," Mayor Bernard Carvalho Jr. said in a statement. "So in that sense, this action is not surprising."

Environmental lawyers, including Earthjustice attorney Paul Achitoff, are also providing pro-bono assistance to defend the ordinance, while not directly representing the county.

"You've got three very big corporations all ganging up to bring this lawsuit," Achitoff said Monday.

Councilman Gary Hooser, who co-authored the bill, said today he's confident the county will do its best to defend against the lawsuit, even though Carvalho vetoed the measure. The council voted 5-2 to override the veto.

"I believe (Carvalho) acknowledges his responsibility and acknowledges that the council and the community are supporting this," Hooser said. "It's the law."

The lawsuit filed Friday by Syngenta Seeds Inc., Pioneer Hi-Bred International Inc. and Agrigenetics Inc. says the law is designed to discriminate against genetically modified seed-farming operations on Kauai, which the companies argue present no health, safety or environmental risks. The suit also claims disclosing pesticide use and GMOs would create a risk for "commercial espionage, vandalism and misappropriation of ... valuable trade secrets."

The ordinance asks for "general descriptions" about what pesticides are being used, how much and where, Hooser said. "We're not asking for formulas. We're not asking for trade secrets," he said.

"If it costs them a little more money to beef up their security, rather than using secrecy, that's what they need to do," Achitoff said.

Attorneys representing the plaintiffs couldn't immediately be reached for comment Monday.

A scheduling conference for the lawsuit is set for April 14 in U.S. District Court in Honolulu.

Meanwhile, a voluntary agreement between the state Department of Agriculture and four seed companies operating on Kauai will continue, Carvalho said.

Under the Good Neighbor Program, certain schools, hospitals and medical clinics that are within 1,000 feet of the farming operations can register to receive a weekly schedule of any planned application of a "restricted-use pesticide" nearby. The guidelines also require a 100-foot buffer zone between application areas and schools, medical facilities and residential properties, unless federal regulations are stricter. The companies are also required to file a monthly report on use of those pesticides with the state agriculture department.

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