Friday, November 18, 2016

Courts Again Find Hawaii Anti-GMO Laws Illegal

The 9th Circuit Court of Appeals today issued three opinions with national implications when it upheld lower court rulings that struck down anti-GMO measures on Kauai, Hawaii Island and Maui.

In a huge victory for the state's seed industry, the panel affirmed that two Hawaii District Court judges acted correctly when they concluded all three county bills were pre-empted by state law, and the Hawaii Island bill and Maui citizen's initiative were pre-empted by federal law as well.

The decision guts a three-year, polarizing effort by the Center for Food Safety and Earthjustice to use Hawaii to establish a national legal precedent for controlling GMO crop cultivation under the guise of “home rule.”

Instead, the opinions showed that recently defeated Kauai Councilman Gary Hooser, who worked closely with the two groups, erred from the get-go in introducing Bill 2491, which created a domino effect of similarly flawed anti-GMO measures on the Big Island and then Maui.

The three bills cost the counties hundreds of thousands of dollar in legal fees and created a bitterly contentious political climate that divided rural communities across the state. The Kauai and Hawaii Island bills were passed by the county councils there, while the Maui law was approved by voter initiative.

The panel affirmed that the Hawaii Pesticides Law, which regulates pesticides and genetically engineered plants, preempted the pesticide provisions in Kauai County’s Bill 2491/Ordinance 960.

The panel found that Ordinance 960’s pesticide provisions and the Hawaii Pesticides Law addressed the same subject matter. It also affirmed that the state’s scheme for the regulation of pesticides was comprehensive. And finally, it held that the Hawaii Legislature clearly intended for the state’s regulation of pesticides to be uniform and exclusive.

The panel also concluded that Ordinance 960’s pesticide provisions were impliedly preempted by Hawaii law and beyond the County’s power. The panel held that certification to the Hawaii Supreme Court was unnecessary because the because the State’s test for implied state preemption was well-defined.

It used similar reasoning in affirming the decision that overturned the Big Island ban on testing and cultivating GMO crops, while also finding that law was expressly pre-empted by federal law.

The Maui initiative, which called for a moratorium on cultivation of GMO crops until they were "proven safe," was also tossed on the basis of being pre-empted by state and federal law.

The anti-GMO movement had been attempting to end-run federal law, which is the hardest to change, by pushing for local legislation to regulate the crops. But with the 9th Circuit opinions, that effort has been seriously derailed.

46 comments:

Anonymous said...

This can't be true. It just can't be. This is what Ross and Mel said would happen. They can't be right. They were the minority. Furfaro, Yukimura, Bynum, Hooser, and Chock said that it was legal. Gary promised us that this wouldn't happen. He promised. Joan, please tell me that this isn't so.

Anonymous said...

Thank you to the Six Councilmembers who allowed passage of Bill 2491, Chair Jay Furfaro, Vice Chair Nadine Nakamura, Tim Bynum, Gary Hooser, Joanne Yukimura, and Mason Chock! You all ignored a tremendous, detailed, County Attorney opinion by Mauna Kea Trask, "Bravo Mauna", and tore our wonderful community apart for no good reason. It will take decades to repair the damage that this caused. You should all be ashamed of yourselves. I'm never voting for any of you again.

Anonymous said...

Too bad this ruling was not announced before the general elections! Given this ruling, our county should repeal the ordinance/bill and withdraw the county's name from any litigation. Mauna Kea Trask, the mayor, Mel and Ross were right in 2013. The issue then and now is still the same - who has jurisdiction? Simple research in the Federal Register would have revealed that.

The council has the super majority to repeal the measure now. The two remaining from the 2013 council who overrode the mayor's veto would be foolish to oppose the repeal.

Anonymous said...

The laws are illegal. Much for the information printed in our paper is outdated, false and written by attorneys who also claim to be experts on Nuclear power, climate change, tree hugging ......

Anonymous said...

auwe, never mind protecting their neighbors----us natives should know better, big cooperations seem to win all the time---i think of how all over this planet earth, the indigenous people were overcome by the white super ego, including the church and lost their land, rights and freedom of speech! Hey guys, it was worth the try---more are aware of being cautious---like the young family who moved from Kekaha to Eleele to protect their children from the pesticides used by the biotech company in the area. There is so much more to be said!

Anonymous said...

Eat shit antis. Death to the grim reaper! ha, ha...

Anonymous said...

The mayor took a brave stance against a very controversial issue and his rationale was solely based on his legal counsel. He was taunted and mocked by a ruckus group of anti's for upholding the law. Mel and Ross, who rarely agree with the mayor, stood by him on this issue. These three should receive public praise for adhering to their promises to uphold the laws of the state, the county, and the Unites States of America ... all of which was covered in their oaths of office.

Gary Hooser and Tim Bynum should be prosecuted for ignoring the advice of the county attorney and proceeding down an illegal path despite being advised as such. Where's the accountability for their reckless actions?

Anonymous said...

Justice and truth shall always prevail in the end. This is the final death blow to Hoosier. I hope he fades into obscurity like Bynum. They have done enormous damage to the County and the people of Kauai. This is good news. The election has affirmed that the people of Kauai got akamai and saw through the shibai of the antis. Hopefully the people of Maui and Big Island will also see the light.

Anonymous said...

12:03pm not akamai enough, they still elected Chock and Yukimura, two crumbs, rubbish!

Bradley Choquette said...

Bet they try and appeal to the US supreme court and wast more time/money....

Anonymous said...

And CB has an article on Terminex misusing pesticides and using methyl bromide one of the most toxic pesticides , and no longer approved for such uses. Resulted in serious problems. Who tents houses, the real estate industry, not the seed companies. No signs warning of tenting and fumigation, no warning to neighbors, nada.

Anonymous said...

I hear that Bynum and Hooser are going to open a health food store.

Anonymous said...

Start a petition then have people sign then bring it to federal attention and it'll go national and international.

Things change with people who are willing to create change for the greater good.

Anonymous said...

Sheep like you is the reason you people are herded.

Anonymous said...

IMUA MAUNAKEA!

Anonymous said...

Let Bynum rest in peace. He passed last night.

Anonymous said...

Thank you Joan for this well written article.
The real damage still is in the community. Da Hoos, Bynum, Furfaro (who the Mayor gave a plum 100K gold-brick County job), Yukimura, Mason (clandestine mob appointed) and yes, our new State Representative, Nadine........all promoted this Anti-Ag bill.
2491 lives on. Da Hoos cleanly picked the scab off of the Local/Haole division.
It will take years for any Haole who testifies at Council to be heard. Today they are tuned out because all of dem are perceived by the Council as Anti-Ag, Anti-local know-it-alls.
Time for Mr Mel to punish Mason and JoAnn by tabling whatever anti-housing, anti-Ag, anti-road or Pro-Taxaton bill they come up with next.
Mauna Kea, Mel and Ross deserve commendation.

Is it true Gary has regurgitated his real estate license? He will make a killing. He is a hero to the same rich folks who use Neal the Squeal Norman as their realator.
Fistee Real Estate?
Gary also set Local Rule back by decades. Just when the Leg was beginning to think that the poor undedjakated outer island folks could handle their own Land Use and Water Rights....along comes this BS 2491 bill.
Nobody will allow the outer islands to decide their own water and land issues. The proof is in the Fistee----a misguided Council makes bad decisions.


Anonymous said...

Lawyers all working for free. No money wasted so relax Bradley. Don't get your knickers in a knot.

Anonymous said...

Bradley, the present council should repeal the ordinance and disassociate the county from any bullshit appeals in the future. Enough is enough. Too much bullshit and hate have been spread over the issue.

Joan Conrow said...

@6:05. You're mistaken. The lawyers aren't "all working for free." The three counties have spent significant legal sums on these measures. But I doubt this will go to the Supreme Court. Earthjustice and Center for Food Safety will now focus their efforts on the state Lege.

Anonymous said...

Joan, all of the lawyers working on the Kauai case including the independent counsel hired by the County are working for free and have been doing so for over a year. All of them have pledged to continue working for free even if it goes all the way to the Supreme Court. Minkin was hired by the County and initially paid but he and his firm have been working for free during this appeal and will continue working for free.

Anonymous said...

@658 so you think over $220,000 is working for free? Real estate must be really good to you. Please hold your breath and wait for Mel Ross Arryl and Arthur to vote to appeal to the Supreme Court where ex Monsanto lawyer Clarence Thomas is telling everyone to honor Scalias legacy. The reds over played their hand. This is like roulette always bet on black! Joan, Gary is already spinning on his blog. Get him!

Joan Conrow said...

Minkin was awarded a generous contract and agreed to work for "free" if his services exceeded that contract, but it was my understanding he hadn't yet exceeded the limits of that contract. What's more, nearly all the legal work was done in the Distrct Court hearing, so there was little legal time needed to prep for the appeal. And please don't try to tell me that Achitoff and Kimbrell are working for "free" when they use these cases as fundraising tools. They most assuredly are being paid. It's a phony PR stunt when they claim to be working for free, like they're doing this out of the goodness of their hearts for the public good.

Anonymous said...

Bynum rest in peace. Hooser killed him socially and morally. Evil guy.

Anonymous said...

Mauna Kea's opinion that the Council ordinance was not legal didn't stop certain members of the Council from voting for it. The Mayor vetoed the bill and was harassed before and afterwards. Congratulations Mauna Kea and thank you Mayor, Ross, and Mel for standing strong. It is nice to have sound minds serving us. The verdict is in and it is time to move on.

Bradley Choquette said...

Legal appeals are not free... District court is expensive. Few people have taken the time to budget the cost of the 9 th district court judges, and clerks, time to write their decision for the last 6 months. Those federal court judges/clerks do not work for free. All federal tax payers are footing the bill for those cost.

Also, EJ is claim victory in the form a county's right to ban GMOs?

Anonymous said...

It is interesting that the County wasted no time in issuing a press release regarding the GMO ruling but failed to issue a press release for the court ruling that keeps the power to discipline the police chief with the police commission. Double standards? If the Mayor wins we issue a press release but if the Mayor loses we don't? Wow.

Anonymous said...

My goodness, that asshole Hooser advanced the argument (TGI Sat 11/19) that the cost of this baseless appeal was paid for by taxes paid by the companies themselves as if that justifies the additional expenditure on this invalidated ordinance. He and the members of the Council voting to override the Mayor's veto plundered the General Fund to defend this piece of crap at the expense of roads, sewers and the tax payers. And Yukimura, cheered on by her buddies like Achitoff, who fretted that we won't know whether the law is valid until we go to court, should finally have her answer. She, a lawyer, owes us an apology for rolling the dice on such a miserable bet.

Anonymous said...

4:29, the mayor lost in the police commission suit, so your conspiracy theory does not work here.

Anonymous said...

Tim, may you Rest In Peace. Can the commenter at 7:45 say why or how?

Anonymous said...

And as usual, the Garden Island article features comments from Hooser, Rosenstiel and Chun, with only one comment from HCIA, and none from actual farmers or scientists.

Anonymous said...

To 6:58:

The Mayor lost the police commission appeal and there was no County press release. Can you read? Can you understand english?

privateD.lister said...

Wow lot of people in this thread who support world hunger. Weird.

Anonymous said...

Hooser and Rosenstiel remind me of the Monty Python knight who gets his arms and legs cut off and then says it is only a flesh wound. What part of repudiation by the voters and now federal judges don't they understand? And what can you say about Achitoff, who claims that federal judges don't know the law? At least he has done a great service to counties all over the United States who won't have to worry about his nuisance suits after this ruling. As for "50 pesticides under the fingernails" Chun, no comment is really needed.

Anonymous said...

This is what makes the antis such a formidable and worthy foe, they do not know when to quit.

Anonymous said...

With this law, private citizens that are sick and suffereing from exposure can SUE the state of Hawaii.

This is just like the Pfluegher case. So if you people have any sense, get all your medical records and SUE the shit out of the state k. Hawaii then SUE the mayor and his administration.

If the state is the regulating authority then they are responsible for the over sight.

This is gonna open a can of worms and so let it begin.

The state has already said they are understaffed to do any testing and this is a binding statement that will secure civil lawsuits.

Remember that the stage said that the kids and staff at Waimea canyon got sick and bloody noses from stick weed but their symptoms was exactly the same as the 10 people who got sick at the Chem/bio companies site after a spray.

I suspect that Waimea canyon was down wind from a scheduled spray and got the drift and suffered from exposure.

All they have to do is get the scheduled spray and when the students and staff got sick then let's see what the state comes up with this time.

Anonymous said...

Gawd 6:36 !! - You are so full of misinformation it's startling! I sure hope you don't have children or worse are a teacher.

Anonymous said...

6:36. Please provide proof, factss, or evidence of your allegations, if not shut the f-up.

Anonymous said...

Yes, 6:36 knows what he/she is talking about! You had to be there to know it!

Anonymous said...

Sheep who are lead to nonpotable water will drink and slowly decay. Ask your master to walk the fields with you after spraying and to bring their kids to walk with them. If he/she answers wth a no then you know if they aren't willing to risk their health or their children's health then why should you.

Anonymous said...

Anyone who knew Tim knew it was not Gary who did him in. strange how TGI didn't mention the thwarted prosecution of Tim and the civil rights case that followed.

Anonymous said...

If 6:36 PM had a serious argument, Hooser would not have plummeted from the #2 vote-getter in District 14 (Cloud Cuckoo Land or the NS) to 8th and 9th place in the 15th and 16th Districts. As for 6:36's discourse on Waimea Canyon Middle School events, voters in the precincts with students attending that school (16-4 and 16-5 Waimea and Kekaha,the Hooserian "Ground Zero") resoundingly gave Hooser his poorest numbers of all 16 precincts- a Trumpian really, really, GREAT drubbing. Yukimura and Chock also paid for their anti-GMO posture in Waimea and Kekaha. Finally, the federal Health Insurance Portability and Accountability Act makes it extremely unlikely that the writer knows what the hell went on in the ER/Hospital when the students and workers presented there. Perhaps 6:36 is an anti-GMO troll from the NS or Maui- and not a good one (or overly familiar with the law) at that. While trolling can amuse, it should not be indulged in by the uninformed or ideologues except among their own where no one gives a shit how ignorant they are.

Anonymous said...

Ever since this Admin and the Baptiste Admin has been in charge, TGI has been nothing but a tourist and admin propaganda machine.

TGI has lost all of its decent reporters and is scared to even print anything like this blog has.

That's why this blog is a lot popular than a old people fluff scrap paper like TGI.

If the old people read this blog, the voting results would be a lot different. The old familiar names would be out the door and the good ol boys and gals from the plantations would be gone from power.

Anonymous said...

GMOS are perfectly safe ya dinguses.

Anonymous said...

Over the years TGI has had a few good reporters who wrote truth to power. Dennis Wilken, Tom Finnegan, Amanda Gregg and most recently, Michelle Iracheta. For the most part, they all have the same story. Management didn't want what they were serving, truth and real reporting.

Many view Trump's win as a referendum against a corrupt media that slants reports toward corporate and government interests instead of the truth. TGI is almost always afraid to challenge anything, and when it does it quotes crazy people (feral cats, smart meters, etc). Worst newspaper in the free world.

Anonymous said...

7:36 PM

Trump is a demagogue, moronic fool who has zero interest in the people. Those who voted for him are gullible fools.

Thinking Trump will be good for anybody is displaying a dangerous level of stupidity, he is an anti-science conspiracy promoted fact hating goon.

GMOs are safe, 95% of scientists on the planet agree. Get educated, please.