Judge strikes down Maui ban on GMOs

A federal judge Tuesday invalidated a Maui County ban on the cultivation of genetically engineered crops, ruling that the prohibition is pre-empted by federal and state law.

The county’s ordinance creating the ban exceeded the county’s authority and is unenforceable, U.S. District Chief Judge Susan Oki Mollway said in her order.

The county, which is a major center for research on genetically engineered crops, will abide by the decision, county spokes­man Rod Antone said.

Monsanto Co. and Dow Chemical Co. unit Agrigenetics Inc. both have research farms in the county. Monsanto has farms on Maui and Molo­kai while Agrigenetics, which does business as Mycogen Seeds, has a farm on Molo­kai.

Mollway stressed that her order addresses only the legal question of county authority. "No portion of this ruling says anything about whether GE organisms are good or bad or about whether the court thinks the substance of the ordinance would be beneficial to the county," she wrote.

"The court recognizes the importance of questions about whether GE activities and GMOs pose risks to human health, the environment and the economy, and about how citizens may participate in the demo­cratic proc­ess," Mollway said. "But any court is a reactive body that addresses matters before it rather than reaching out to grab hold of whatever matters may catch a judge’s fancy because the matters are interesting, important or of great concern to many people."

Maui voters passed the prohibition when they approved a ballot initiative by a margin of 50 percent to 48 percent in November. Monsanto Co., Dow AgroSciences and other biotech supporters spent a record $7 million to try to defeat the ballot initiative.

The measure imposed a moratorium on the growing of genetically engineered crops until scientific studies are conducted on their safety and benefits. The ordinance would have allowed the moratorium to be lifted only after a vote by the Maui County Council.

Mark Sheehan, one of five citizens who spearheaded the ballot initiative, said his group will appeal the decision. He expressed disappointment that Mollway ruled on what he called procedural issues instead of addressing the substance of their argument.

The ordinance was specifically written to address issues not found in state statute, he said. Further, the law requires the county to protect the health of the environment and the public, said Sheehan, who is a member of the group Sustainable Hawaiian Agriculture for the Keiki and the Aina Movement, or SHAKA.

"That was lost on the judge, so we will have to move along and have to find justice for the constitutional rights of the people of Maui at another level," he said.

Mike Carroll, an attorney for SHAKA, said he believed Mollway’s opinion was overreaching. Carroll said he was disappointed the judge ignored many aspects of his side’s arguments on harms to the county.

Mollway’s decision comes after similar rulings last year by Hawaii federal Judge Barry Kurren, who struck down a Kauai law requiring commercial agricultural companies to disclose pesticide use and invalidated a Hawaii County law banning most genetically modified crops.

Kurren ruled that the county ordinances were pre-empted by state law. Both decisions are being appealed to the 9th U.S. Circuit Court of Appeals.

Kihei resident Autumn Ness of GMO Free Maui called on Monsanto and Dow to halt GMO crop production and perform safety studies despite Mollway’s ruling. The group also wants the companies to drop their lawsuit filed in November that seeks to invalidate the moratorium.

"Monsanto and Dow spent record-breaking amounts of money in a deceptive ‘Vote No’ campaign last election. Maui voted ‘yes’ anyway, and instead of respecting the basic demo­cratic proc­ess and complying with our vote, Monsanto and Dow sued us," Ness said.

She said Maui residents plan to rally near Monsanto’s North Kihei offices Wednesday morning.

John Purcell, Monsanto Hawaii vice president for business and technology, said in a statement that the company, which employs 1,000 workers statewide, is proud to be a part of Hawaii’s agricultural community.

"We’re listening, and we’ve heard the concerns some people have about GMOs and today’s farming practices," Purcell said. "Our commitment to ongoing dialogue with our neighbors doesn’t stop today. We understand the responsibility we have to farm sustainably and to work collaboratively, and we welcome the opportunity to continue having conversations with members of the community."

Maui farmer and GMO opponent Alika Atay said he was disappointed that Maui County wouldn’t be appealing the decision.

"Our county has a duty to uphold the public trust doctrine and the will of the voters. Their failure to take action on this issue is a breach of that duty," Atay said in a statement.

Hawaii’s year-round warm weather makes the islands a favorite research spot for companies that use genetic engineering to develop new types of corn and other crops. The weather allows researchers to grow more generations of crops and accelerate their development of new varieties.