A federal judge has struck down a Kauai County law regulating pesticides and genetically modified crops by large agribusinesses, and the mayors of two other islands said the ruling could have wide implications for their counties.
But it’s unclear precisely how the ruling Monday will affect Hawaii and Maui counties, which are facing similar issues relating to pesticides and genetically modified organisms.
U.S. Magistrate Judge Barry Kurren ruled in favor of four seed companies that Kauai’s Ordinance 960 is invalid and pre-empted by state law.
The ordinance, formerly Bill 2491, required mandatory disclosure on pesticide use and growth of GMOs by large-scale commercial agricultural companies on Kauai.
Syngenta, DuPont Pioneer, Agrigenetics Inc., doing business as Dow AgroSciences, and BASF filed a lawsuit in January against Kauai County, seeking to block implementation of the law, claiming it was fatally flawed.
The law was scheduled to go into effect Aug. 16 but the court extended it to Oct. 1. However, the judge’s ruling stops the county from enforcing the ordinance.
In his order, dated Friday, Kurren said, "This decision in no way diminishes the health and environmental concerns of the people of Kauai. The Court’s ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County."
Ordinance 960 required commercial agricultural companies that purchased or used more than 5 pounds or 15 gallons of any restricted-use pesticide to disclose the type used, active ingredient, date and time of use and the specific location. The law also required seed companies to establish buffer zones near dwellings, medical facilities, schools, parks, public roadways, shorelines and waterways.
Kauai Mayor Bernard Carvalho heard about the ruling while he and other county mayors were at a Hawaii State Association of Counties’ meeting in Honolulu Monday.
During a news briefing 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 concerning disclosure and buffer zones but felt "the law was not proper and legal."
Legal action could have been avoided, he said, simply by getting all key players to the table, working together to address concerns and coming up with a collective understanding on the matter.
Attorney David Minkin, who represented the county, called the ruling disappointing.
"It was done to protect people, citizens of Kauai, from GMOs as well as harmful pesticides," said Minkin, who is with the Honolulu firm McCorriston Miller Mukai MacKinnon LLP. The legal bill for the McCorriston firm was $175,000.
The county is exploring its options, one of which is appealing the decision, Minkin said.
Hawaii County Mayor Billy Kenoi and Maui County Mayor Alan Arakawa said Kurren’s ruling will provide legal guidance relating to GMO issues in their counties.
In June, Hawaii island farmers, ranchers and flower growers filed a lawsuit in federal court seeking a court order to invalidate a county law banning the planting of genetically engineered crops. The law, which took effect in December, exempts papayas and other GMO crops already grown on Hawaii island.
During the news briefing, Kenoi said the situation on Kauai County is different. For one thing, no seed companies operate on Hawaii island.
"This recent federal court decision provides some legal analysis, some legal guidance, and we await the federal court’s decision that is applicable to the County of Hawaii," he added.
In Maui County, voters will cast their ballots on an initiative for a proposed moratorium that would make it illegal to grow or test genetically modified crops in the county until seed companies can prove their practices are safe via environmental and public health studies.
Arakawa said Kurren’s ruling on Kauai’s pesticides law will provide information for the public to review and ensure the community is aware of what’s involved in the initiative. It’s important that facts are presented so Maui County doesn’t run into the same problem as Kauai, he said.
"We want to do it right the first time."
Also expressing disappointment Monday were attorneys for Earthjustice and the Center for Food Safety, who represented three other organizations that joined the lawsuit: Ka Makani Ho‘opono, Pesticide Action Network of North America and the Surfrider Foundation.
"It has unfortunate consequences on Kauai and throughout the state," said Earthjustice attorney Paul Achitoff. "The state has shown complete disregard for problems that the pesticides on Kauai have 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."
Achitoff said an appeal is likely.
Kauai County Councilman Gary Hooser, who introduced Bill 2491 with Councilman Tim Bynum, said the battle is a long way from being over
"One ruling by one magistrate does not settle the issue," he said. "The judge is saying it’s the state’s responsibility, but the state is negligent."
He added, "Our community is not going to take it, to be told we can’t do something, we can’t protect ourselves when the state is refusing to protect us."
In response to Achitoff’s comment on Kurren’s ruling, 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 decision.
"I think he recognized that the ordinance was pre-empted by state law and it’s invalid and that he recognized that this is simply not the job of the County Council."
Bronster, as well as attorney Paul Alston, who represented Syngenta and BASF, had testified against the measure at public hearings held by the Council last year.
"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," said Bronster.
Alston said the companies will vigorously defend the judge’s ruling should an appeal take place.
The Associated Press contributed to this report.
