Judge quashes Big Isle GMO ban

A federal judge on Wednesday once again ruled against efforts to ban genetically modified crops in the islands by invalidating a 2013 Hawaii County Council ordinance.

U.S. Magistrate Judge Barry Kurren’s ruling follows a similar decision he made in August that overruled a Kauai ordinance requiring annual reporting of each genetically engineered organism grown on the Garden Isle.

On Dec. 12, Kurren is scheduled to hear motions on a similar lawsuit regarding Maui voters’ decision in November to temporarily suspend the growth, testing or cultivation of GMO crops in Maui County until they are proved safe by an environmental and public health study.

Margery Bronster, one of the attorneys representing plaintiffs that included the Hawaii Floriculture and Nursery Association, Hawaii Papaya Industry Association, Big Island Banana Growers Association, Hawaii Cattlemens Council, Pacific Floral Exchange and Biotechnology Industry Organization, told The Associated Press on the eve of Thanksgiving that Kurren’s ruling is "something to be thankful for," adding, "This is really important to some of the farmers. It has a big impact on their lives and their livelihoods."

The Maui case involves many of the same people who have battled in court over the Kauai and Hawaii island GMO issues.

Kurren’s ruling in the Kauai case is already being appealed to the 9th U.S. Circuit Court of Appeals. Hawaii County Corporation Counsel Molly Stebbins said her office will take a few weeks to decide whether to appeal their case to the 9th Circuit, as well.

"We’re disappointed with the ruling, but it didn’t come as a total surprise given Judge Kurren’s ruling in the Kauai case," Stebbins said.

In the Hawaii island case, Kurren ruled that Hawaii County Ordinance 13-121 to ban most genetically modified crops except papayas was pre-empted by state law.

It was the same argument that Kurren used in the case of Syngenta Seeds Inc. v. County of Kauai.

"Applying the legal standards and the state constitutional framework, statutes, and agriculture regulations discussed in Syngenta … the Court concludes that Hawaii state law impliedly pre-empts and invalidates Ordinance 13-121," Kurren wrote in his ruling.

But Paul Achitoff, managing attorney of the Honolulu office of Earthjustice, said the Hawaii Legislature has never passed a bill on genetically engineered crops.

"His basic conclusion that Hawaii law pre-empts county authority over regulating genetically engineered crops is simply wrong," Achitoff said. "I believe that will be reversed by the 9th Circuit Court of Appeals. It’s unprecedented. I don’t think you’ll find a case anywhere in the United States where a judge says a law is pre-empted where there is no statute. If the 9th Circuit agrees with us, I really don’t see how Judge Kurren’s decision in the Big Island case will stand."

Achitoff is currently preparing briefs for his appeal to the 9th Circuit involving the Kauai case but is only serving as a friend of the court in the Hawaii island case.