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Lawyer urges judge to invalidate Big Isle GMO law

    Protesters at opening day of legislature. Marchers walking to capitol. Paul Izak, of Kailua, is against GMO foods.

A lawyer representing a group seeking to invalidate Hawaii County’s law restricting the use of genetically engineered crops urged a judge Thursday to make the same decision he recently made invalidating Kauai’s law.

U.S. Magistrate Judge Barry Kurren ruled in August that a Kauai County law requiring companies to disclose their use of pesticides and genetically modified crops is invalid because it’s pre-empted by state law.

"We believe that same ruling should follow here," said Margery Bronster, representing Hawaii Floriculture and Nursery Association, Hawaii Papaya Industry Association, Big Island Banana Growers Association, Hawaii Cattlemen’s Council, Pacific Floral Exchange, Biotechnology Industry Organization and various farmers.

The plaintiffs want to invalidate an ordinance that went into effect in December banning new cultivation of any genetically modified crops and testing of GMO crops unless in enclosed spaces such as greenhouses. They argue the county ordinance is pre-empted by federal and state law.

The lawsuit says the ordinance affects their livelihoods — including flower growers seeking genetically-engineered variety of anthurium that would withstand plant pests and cattlemen who want to grow GMO feed to avoid having to send cattle to the mainland for fattening up before slaughter.

The Hawaii County ordinance is more onerous than the Kauai one and adds to the challenges farmers face on the Big Island including blight and viruses, pests, hurricanes and vandals, Bronster said. And lava, Kurren interjected of a Kilauea volcano flow that’s threatening rural communities in the Puna district.

The ordinance is pre-empted by state law and is in conflict with the state constitution that promotes diversified agriculture, including small farmers, flower growers, cattle and big seed companies, Bronster said.

Pre-emption was the same argument Bronster raised when arguing against Kauai’s law.

Thursday’s hearing drew far fewer spectators than the Kauai one in the same courtroom, where many people had to sit on the floor.

The ordinance allows for numerous exemptions, such as for papayas, said County Deputy Corporation Counsel Katherine Garson.

The intention of the ordinance is to "promote non-GMO agriculture, plants and crops," she said, adding that the Big Island wanted to "promote itself as an eco-friendly place."

Those who support that law do so in order to keep the Big Island from becoming like other counties, said Earthjustice attorney Paul Achitoff, who represents the Center for Food Safety and some organic farmers.

He argued that counties shouldn’t have to rely on the state to regulate agriculture. He likened the situation to albizia trees that were problematic when a tropical storm hit the Big Island in August.

"If the court is going to say only the state can regulate vegetation that may cause a problem, what happens to the county’s ability to say ‘we have to get rid of these albizia trees before they fall on any power lines,’" he said.

The bill’s author, County Councilwoman Margaret Wille, said she’s hopeful Kurren will see Hawaii County’s law differently than the Kauai one: "Hopefully this magistrate has had an epiphany and is a little more foresighted."

It’s not clear when Kurren will issue a ruling. He said his previous decision shouldn’t be seen as a "done deal" for the Big Island.

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