Thursday, October 31, 2013

Mayor Vetoes Pesticide/GMO Disclosure Bill

Kauai Mayor Bernard Carvalho Jr. has vetoed the pesticide/GMO disclosure bill, saying the county does not have the legal authority to enact most of its provisions.

“I do not make this decision lightly, and I know that it will be controversial,” a press release stated. “However, I believe it is the right thing to do given the circumstances before me.”

The news came as a shock to many Bill 2491 supporters, who apparently thought the battle was over when the Council voted 6-1 to approve the bill in the wee hours of Oct. 16 after an emotional and contentious 18-hour meeting.

Bill 2491, Draft 2 has now been returned to the County Council, which must act on the veto within 30 days. Five votes are required to override the veto. Though the bill passed the Council 6-1, Nadine Nakamura, who voted affirmatively, has since left the Council, and Ross Kagawa, who also voted yes, has repeatedly expressed concerns with the measure and could change his vote.

The Council also could amend the bill to address Carvalho's concerns and return it to him for signature.

Carvalho said he agrees with the general intent of the bill, including pre- and post-disclosure of pesticide use, buffer zones and an independent study to determine whether pesticides are harming human and environmental health.

The mayor urged the Council to quickly fund the joint fact finding study group that will lead to the environmental public health impact study (EPHIS) outlined in the bill. He said a resolution on next week's Council agenda could get that process moving, despite the veto.

Though a County Council majority — including bill co-sponsors Gary Hooser and Tim Bynum — previously had voted against releasing the county attorney's opinion on Bill 2491, Carvalho produced a copy to justify his decision. (Link leads to PDF download of news release, mayor's statement and opinion.]

Carvalho pointed to a number of legal concerns, including a prohibition against growing any kind of crops, even those that don't use pesticides, in the buffer zones. He also noted that existing state and federal laws appear to pre-empt the county's ability to enact its own pesticide regulations.

The bill “will also likely be challenged as an invalid exercise of the County's police power, an invalid exercise of the County's ability to regulate public nuisances and/or a violation of the Hawaii Right to Farm Act's prohibition against any public officials” declaring” such farming operations a nuisance, according to the County Attorney's opinion.

Another legal issue stems from the Council's decision to move the bill's implementation and enforcement from Public Works to the Office of Economic Development. Since OED is not a regulatory agency, “the Council would be in violation of the charter by assigning new functions to OED,” Carvalho wrote.

“As I have said all along, I truly believe that we could have accomplished these goals faster and in a legally sound manner by working cooperatively with the state, which has clear legal authority over buffer zones and pesticide disclosure,” he wrote.

Carvalho noted in his letter that that “the state Department of Agriculture has been working with the five companies that would be impacted by this bill on voluntary pesticide disclosure and buffer zone guidelines. We anticipate an announcement of their product in two to three weeks. Governor Abercrombie has informed that he will be seeking funding for additional inspectors that could service Kauai.

These efforts are positive steps forward in realizing the goals of the bill, until the EPHIS is complete and its recommendations can be adopted by the appropriate parties."

The community is “deeply divided over 2491 and we can't allow that to continue," the mayor wrote. "It is my hope that after reviewing the opinion, the reasons for this action will be clear, and we can then focus on finding common ground and moving forward.”

“Since receiving the opinion I’ve spent hours and hours understanding the points raised and questioning our attorneys on the legal issues,” the press release stated. “While I believe a veto is necessary, we can and will find legal means to address these important health and safety issues.”

Though Blake Drolson of GMO Free Kauai sent out a last-minute email urging people to show up in force at the mayor's office for his announcement, only about two dozen protesters were on hand. Drolson's email stated:

If the Mayor chooses to VETO the bill, we need to fulfill our kuleana and show our disapproval.  

After all, our children need to know that we will protect them.
And our community needs to know that democracy exists on Kauai.

The group also was running an survey on whether the mayor should be recalled. It asked people to click either YES, The Mayor needs to honor the Council's 6-1 decision, or NO, The Mayor does not need to honor the Council's 6-1 decision.

Others on Facebook posted comments about how the mayor was "committing political suicide" and will pay in 2014, though both assertions are doubtful, given that no one has yet emerged to challenge his re-election and few of those active in the pro-2491 were Carvalho supporters, anyway. One of the Biotech Babes — a resident of Oahu — posted a photo saying "enjoy your permanent vacation from office. Shame on you," along with the message:


Some have said that a veto could also energize the movement for a referendum. However, the last two referendums approved by Kauai voters were defeated in legal challenges, despite overwhelming voter approval.


Katie said...

I've been trying to find the long version of the County Attorney opinion on the website with no luck. Am I missing something?

Joan Conrow said...

If you go to this link, it will download a PDF and the county attorney's opinion is posted at the end of it.

Katie said...

Got it…thank you.

Anonymous said...

Hope people read the opinion. Makes sense.

Anonymous said...

I think if we are going to pass a bill we need to make sure it is defensible because I, as a taxpayer, don't want to foot the legal bill to defend something that is going to end up in court and found to be illegal and overturned anyway. From the legal opinion as written, it isn't defensible. The mayor is being financially and administratively prudent (and extremely brave knowing how controversial it would be) by vetoing this bill. That doesn't mean I don't think there needs to be one. It means it needs to be re-written to take into consideration the legal challenges that have been brought to our attention by this legal opinion and the previous case law it cites. I am curious as to why the council voted to not release the legal opinion before but I guess thats a mute point now.

Anonymous said...

Mayor Carvalho is spot on. There are many roads to Rome and the road this bill traveled was fraught with inconsistency. Whatever the County Attorney's opinion was I think the Mayor had to veto the bill, unless he wanted Kauai to be pushed around by shrill strident tactics.
Hopefully, the "million tiny fisters" will find a proper place to put the tiny little fist.

Anonymous said...

Joan- Thank you for county attorney opinion. Thank you Mayor for allowing us to see it.

Anonymous said...

Earth Justice offered their legal services as did another environmental org.

Anonymous said...

Why didn't the council members who are always asking to release attorney opinions not want to release this one? Such a waste of time and resources!

Anonymous said...

Well, Gary got his name in the news a lot. He has name recognition. It's clear he's not content being on the council. He got a smack down when he vacated his state senate seat to run for lieutenant governor. He wants the mayor seat in 2018 (possibly in 2014 but only the pro-2491 crowd would vote for him). The mayor did the right thing. The council seemed to pass this more on emotion and less on facts and consideration of the realities of enforcement. We can’t even enforce tinted windows or illegal squatters at Kalalau. Do you REALLY think we are cable of enforcing 2491?? I guess if you smoke enough of the stuff you smell daily at black pot beach or any other place out in the open in front of cops you might believe it possible. Here’s one for you: If the activists / council thinks the state officials, EPA and FDA are paid off, what’s to stop the local enforcement employees from accepting bribes? (I don’t think like the activists, btw.) Finally, true sanity was added to this circus. Hooser, you’re name is out there and I’ll make certain I don’t put any marks next to your name. Bynum, you have a lot of explaining to do. Anti-business, anti-Westside, anti-common sense.

Anonymous said...

Rapozo and Kagawa voted to release the opinion. The rest voted against the release. Now we know why.

Anonymous said...

Who can take people like this seriously?

SHAME On YOU MAYOR, and GOODBYE... as the MOTHERS, FATHERS, Aunties, Elders, Teachers, Doctors, Nurses and Brave Souls of KAUAI will DEFEND our CHILDREN and will actively canvas the island AGAINST your re-election and if we could RECALL you with a VOTE OF NO CONFIDENCE right NOW we would! - The Mayor of Kauai just sold out his people, the children and the babies of our island who are born with 10 times the national average of rare some birth defects on the west side - HE VETOED BILL 2491. The bill had petitions of over 50,000 signatures in support of the bill, nearly every doctor, nurse and lawyer on the island including a former Hawaii Supreme Court Judge endorsed the bill, the Teachers Union and Local 5 Unions endorsed the bill - and it passed 6-1 Nearly unanimously in county council. Apparently the Mayor feels this is not a democracy, but a dictatorship where the will of the people and democratic process is meaningless to him, high cancer rates on the west side, meaningless to him, 10 times the national rate of a rare birth defect on the west side? Meaningless to our Mayor. All he cares about is the MONEY and INTIMIDATION of the chemical companies. I have lost ALL respect for this man. Every Baby born with a birth defect in the additional time it takes to pass this bill Mr. Mayor - is YOUR LEGACY to Kauai. " BIRTH DEFECT MAYOR" - YOU SOLD OUT your people for MAINLAND CHEMICAL COMPANY GREED. How much did they Pay / Bribe / Threaten you with? This was a cowardly act of one who does not love his people, but only mainland corporate greed. SHAME ON YOU MAYOR. Soon to be 'FORMER Mayor Carvalho". — with Andrea Brower and 14 others.

Anonymous said...

Nadine and Yukimura with the support of the gMO, the Mayor and admin conspired to kill the bill.

They successfully did their duty well. Vote these corrupt bastards out of office and open criminal investigations on all of these good ol boys and gals.

Anonymous said...

This decision will reverberate for a long time. Or people will forget about it by November, 2014. One way or the other, it's an interesting step by the mayor.

The people who think the mayor is automatically going to lose the election haven't lived here long enough. He's still got the political machine behind him, which hasn't lost a mayoral election since Joanne.

It makes Bernard more vulnerable, that's for sure. I think he knows that he's got at least his regular clan of county employees and their families, those who live off county contracts, farmers, and, of course, the anti-haole and north shore contingent. That's a really good chunk of regular voters right there.

Two things that I've never seen before. First is the veto itself. I can't remember the last one. Has to be a decade or more.

Second is the mayor releasing the county attorney's opinion. I was told -- after asking for them on a number of occasions -- that they could not be released. The damn thing even has it stamped on it. I don't know why suddenly they can release it to the public. If I were Gary Hooser, I'd see if there were any possible legal ramifications for the mayor posting it without the council's opinion, since they are also clients and fall under the attorney-client privilege. How could he do that? What gives him the right?

I also don't think the mayor is corrupt, or took bribes, or whatever. That's not how it works. He was convinced. The mayor is just a big political #ussy. Always been. Any time someone threatens to sue the county, he runs scared.

He's a BAD mayor. No doubt. The only difference between him and the Kusaka administration is that she ACTUALLY took money.

What has he done? Big football star and the lights STILL aren't fixed at Vidinha Stadium and Hanapepe. His constituents still blame the birds.
And that's why there's a good chance he'll be reelected next year.

Anonymous said...

The day the emotional vocal minority determines how our elected officials vote is a sad day for Kauai. It will be interesting to watch how each member of the council votes on the Mayor's veto now that we have all read the attorney's opinion. I hope the council members remember the Oath of Office they took. 5:37, you are wonder they voted not to release the attorney's opinion.....except for Mel and Ross. I also hope they remember the silent majority in their decision making. It is interesting that on this issue, Mel and the Mayor are on the same side......basing their decisions on principle versus politics.

Anonymous said...

7:37 Just to clarify the attorney's opinion that the Mayor released. There were two opinions produced - one to the Council earlier at their request and another to the Mayor on the 24th which he had requested. The Council did not release theirs. The Mayor released his. I bet he confirmed with the attorney that he had the right to do so. My guess is that they were similar so now we all know the contents which is as should be.

Unknown said...

Before you vote out/recall the mayor and other corrup bureaucrats, sue them PERSONALLY for everything they've got through the People's Common Law Grand Jury. This is the way.

Anonymous said...

Anybody notice the worst parts of this bill, that Carvalho cites, were the amendments that JoAnn and Nadine did...

Anonymous said...

From a fiscal view it is the only prudent choice. County will break its budget from Lawyers and their suits, inspectors and their paperwork, scientists and their studies etc. can't tax our contributors like the developers and TVR taxpayers.

It might cost him a little bit bite in the booth. But him or Hoose da loser? What kine choice is that

Andy Parx said...

The legal opinion isn't with a dime- it's a joke. Even the biotech industry's own lawyer testified before the council that there is no federal exemption and, except for that lawyer, no other lawyer has said there is any state preemption- although a list as long as your arm have said there is none. And by the way, some of the best public interest attorneys in the state and county have offered to defend the law pro bono (for free) so don't give us this "legal cost" stuff. Other than that I'll leave you Yahoos to your ill-informed rants.

Anonymous said...

It seems the locals have come alive in their support of the Mayor, emails and Facebook are exploding pro Carvalho.
To have County government defended pro bono by jaded lawyers "in the public interest" is a joke. We do not need self seeking glory hounds. The County would have to hire real lawyers that do not have a Socio/Enviro agenda.
It is time to heal, take a breath and b'golly maybe try to have a conversation. Nobody likes to be talked down to, we are all citizens and though there are many who feel they are smarter and intrinsically endowed with great knowledge and celestial direction, somewhere, sometime there should be a little calm communication.

Anonymous said...

Corrupt Mayor??

I don't think you have been paying attention to the 14K gallon gas theft. That is only for 1 yr. That I why he is trying to get rid of Ernie Pasion.

He got rid of Rolf Bieber after a few board of ethics members had to step down from their seat for conflict of interest and other abuse issues.

How about the hiring of family and friends that are not qualified for their outrageous yearly salaries. For instance, Lenny didn't know anything about fixing Kilauea gym's roof so they hired someone 100k to figure it out. The conclusion was that it would cost 1 million dollars to fix the roof. Another family or friend trying to cash in on the Kauai piggy bank. Nothing has been done.

How about the 2-3 million dollars to rebuild the kapaia bridge that only a few handful of people use.

How about the recreational bike path that they foolishly passed as a alternate means of a transportation route being built for a few bike riders. It has cost how many 100's of millions so far?

How about the coco palms scam!!! Go figure that mess out.

How about the Costa and Aiu TVR mess, the Feds told them to get rid of these moonlighting white collar criminals but instead they all cried on Hoike and said we need to stick together because together we can- get away with anything.

How about the over bid an fleecing of the wailua bridge construction. 1 million? 9 million? Turned out to be a 45 million dollar bridge. Who pocketed the millions.

How about the roads that take 2-3 years to fix or replace a 2 mile stretch. Any crew in the mainland or any other island would be jobless or in jail for that kind o thievery.

How about his top assistant sending emails to protect only their family and friends from the serial killer.

What else you like??

How about the beef he had with the police chief?

How about what they are doing in lihue. If anybody go to the county bldg and the round bldg, it's like a family reunion everyday. The whole parking lot front and back is filled with unqualified worthless individuals.

How about hiring a human resource manager who was under guilty of managerial abuse while working for DOT. She would also warn family an friends when there were drug tests and hire people who have long criminal records.

How about a proposal to build a 150 million dollar sports field in waimea. What fried and family is going I cash in on that one. Like a proposal to build a food court in tr old big save. The tax payers monies is not your money to create business opportunities for your family and friends.

PRD321 said...

So, if I had a farm and people around me are worried about their children's health, would I not be concerned too and find out what's wrong? Would I not stay away from schools and hospitals with my sprays and let people knows what is being sprayed so that doctors can work with this? Feels to me like good-neighbor behavior.
Hey, nobody would need to make laws for that.

Anonymous said...

The mayor was dead wrong vetoing this bill. It should have been passed, gone to court, and made into law. Some brainwashed people seem to be blinded by "the law" and "money" and forget that crimes are being committed against humanity. Yes, emotions run high when there is grave injustice and nothing happening to stop it! The mayor is an evil man who doesn't deserve to live on this planet, as are all of the biotech employees. All blinded and brainwashed by money.

Anonymous said...

Please get your facts straight before you go off...There are two opinions- One addresses County Councils Concerns. They voted not to release it..basically ignored it..hen one requested by the Mayor regarding the legal ramifications if he signed it...he can release it because it was requested by him and written to him. got it??

Anonymous said...

Yes the mayor can release the opinion. Why did he do it? If the seed companies threaten to sue why give them a confidential legal memo that can be used against the county? Either the mayor is a cynical politician who released the opinion to give himself cover or he's stupid.

Anonymous said...

I read the opinion and it refutes what all those "reputable attorneys" said about the legality of the bill. Andy Pricks apparently skipped pages 42 through 47 of the opinion because it acknowledges that the states can regulate pesticides and then discusses at length why the state law preempts county regulation.

Anonymous said...

Doesn't anybody remember that the mayor came in with an agenda? He went to oahu and came back saying that the state is going to make sure we have enough money and give us more people in the dept of ag, etc. and the biotechs were going to stop spraying us in the face and become good neighbors and ALL WE HAD TO DO was defer the bill for six months. And then he started to bargain. He talked about how important it is to have friendships and connections and how he needed the time to study, etc.

Anonymous said...

We are all screwed if this mayor will have four more years. His administration bullies employees and sends them to hell.