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Judge: Kauai genetically modified crop law invalid

By Rosemarie Bernardo

POSTED:
LAST UPDATED: 03:36 p.m. HST, Aug 25, 2014


A federal judge has ruled a new law regulating the use of pesticides and growth of genetically modified organisms by large-scale commercial agricultural companies on Kauai is invalid.

In a judgement dated Aug. 23, U.S. Magistrate Judge Barry Kurren ruled in favor of four seed companies: Syngeta, DuPont Pioneer, Agrigenetics Inc., doing business as Dow AgroSciences, and BASF. The companies filed a lawsuit in January against Kauai County seeking to block implementation of Ordinance 960.  

The law was scheduled to go into effect Aug. 16, but the court extended it to October. However, the judge's ruling stops the county from enforcing the ordinance.

It required commercial agricultural companies that purchased or used more than five pounds or 15 gallons of any restricted-use pesticide to disclose the type used, active ingredient, date and time of use, and local used. The law also required seed companies to establish buffer zones near dwellings, medical facilities, schools, parks, public roadways, shorelines and waterways. 

Violators were to be fined $10,000 to $25,000 a day, per violation. 

Earthjustice attorney Paul Achitoff said the court's decision was disappointing. "It has unfortunate consequences on Kauai and throughout the state. The state has shown complete disregard for problems that the pesticides on Kauai has been causing."

"The federal court decided that the state only has to the power to do anything about it but the state has refused to do anything," he said. 

Attorneys for Earthjustice, and the Center for Food Safety also represented three other organizations that joined the lawsuit: Ka Makani Ho'opono,  Pesticide Action Network of North America and the Surfrider Foundation. 

Attorney Margery Bronster who represented Dow AgroSciences and DuPont Pioneer in the lawsuit, said, "To suggest that there is no state regulation is wrong. There is. There is state regulation."

Bronster said she was pleased with the judge's ruling. "I think he recognized that the ordinance was preempted by state law and it's invalid and that he recognized that this is simply not the job of the county council."

Bronster had testified against the measure at public hearings held by the council last year on the measure. "Before it was passed, we told them that it has constitutional problems and that we believe strongly that the court would invalidate it and the court has done so," she added. 

A public hearing scheduled for Tuesday on administrative rules to carry out the law has been canceled. 

Like Achitoff, attorney David Minkin, who represented the county, expressed disappointment by the ruling on the law. "It was done to protect people, citizens of Kauai from GMOs as well as harmful pesticides," said Minkin about Ordinance 960.

Minkin, of the Honolulu firm McCorriston Miller Mukai MacKinnon LLP, said they requested that the federal court take the matter to the Supreme Court to determine whether the new law was preempted by state law but the judge declined to do so. 

The county is exploring its options, including an appeal, but Minkin said it's too early to say whether an appeal will happen. 

Kauai Mayor Bernard Carvalho Jr. heard about a ruling while he and other county mayors were at a Hawaii State Association of Counties' meeting in Honolulu Monday. During a news conference at Honolulu Hale, Carvalho said, "We're very thankful that the court has ruled in a timely manner and we're happy to have a verified legal analysis of Ordinance 960."

Carvalho noted he has always agreed with the intent of the ordinance but felt "the law was not proper and legal in ways to proceed."






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