Friday, January 10, 2014

Seed Companies Sue to Invalidate Bill 2491

Pioneer, Syngenta and Agrigenetics (DOW) are asking a federal judge to invalidate Kauai County's pesticide-GMO disclosure law and prevent its implementation.

The complaint, filed in federal District Court late Friday afternoon, says “Bill 2491 irrationally prohibits Plaintiffs from growing any crops, whether genetically modified or not, within arbitrarily drawn buffer zones inapplicable to other growers, and restricts Plaintiffs' pesticide use within those buffer zones.”

As I previously reported, Councilwoman JoAnn Yukimura introduced the amendment prohibiting any crops in the buffer zones as bill proponents wept, yelled and demanded immediate passage in the wee hours of Oct. 16. Bill co-sponsors Gary Hooser and Tim Bynum supported her amendment.

The complaint contends the county has no authority to adopt such a bill because it is preempted by the state and federal governments, which already regulate pesticides and genetically modified crops.

According to the complaint, the bill is “fatally flawed” because:

It violates Plaintiffs' federal and state constitutional rights to equal protection and due process by arbitrarily targeting Plaintiffs— and exempting virtually all other uses of pesticides, including the County itself;

It also violates Plaintiffs' federal and state constitutional rights to equal protection and due process by imposing burdensome operational restrictions and civil and criminal penalties that have no legal or factual justification;

It takes and damages Plaintiffs' property by forbidding them from planting any crops in arbitrary “buffer ones” without good cause or just compensation;

It violates the Kauai County Charter; and,

It was adopted — over a veto by Kauai Mayor Bernard Carvalho at the advice of his legal counsel — by a supermajority of the County Council that included a member who was selected in a manner that violated the Hawaii Open Meeting Law (H.R.S. Chapter 92).

As you may recall, when it appeared the Council was unable to override the mayor's veto, it recessed for a day and met in secret to pick Mason Chock to fill a vacancy on the Council. None of the other candidates were publicly identified. The following day, the Council again took up the bill, and with Chock's vote, overrode the veto.

The plaintiffs are asking the U.S. District Court to “declare Bill 2491 invalid and enjoin the County from enforcing it.” The bill is due to take effect. Aug. 16. Though Kauai Coffee and BASF are also affected by the bill, they did not join the complaint.

Bill 2491 is designed to discriminate against GM seed farming operations on Kauai,” the complaint states. “Because Kauai Coffee does not grow GM crops, Bill 2491 was tailored to reduce its impact on Kauai Coffee, just as it was explicitly tailored to avoid impacting others who use pesticides on Kauai to grow non-GM crops and for other purposes.”

The bill also “violates the Commerce Clause because it has a disproportionate impact on out-of-state entities that are engaged in interstate and foreign commerce, without burdening local entities will Bill 2491's requirements," the complaint alleges. "In fact, the County targeted Plaintiffs in drafting the Bill. This is reflected by testimony of the Bill's sponsors and opponents.” As evidence, it cites examples of testimony from Hooser and Bynum.

The complaint states the companies “seed production activities could not have proceeded without the exhaustive review of potential health, safety and environmental risks by federal and state agencies, which have conclusively determined that (1) GM plants present no such risks, and (2) the pesticides Plaintiffs use present no unreasonable risks to the environment or public health. Thus, the ostensible purpose of Bill 2491, to protect the 'health and natural environment' of Kauai and its people from the use of pesticides and GM crops, is already addressed by the comprehensive state and federal regulatory programs.”

It goes on to say the bill “imposes unwarranted and burdensome disclosure requirements relating to pesticide usage and GM crops that compromise Plaintiffs confidential commercial information and unnecessarily expose Plaintiffs to risks of corporate espionage, vandalism, and environmental terrorism.”

The complaint states the companies “have received threats of vandalism related to their opposition to Bill 2491.”

Information regarding use of specific pesticides in experimental GM seed production is closely-guarded confidential commercial information because a knowledgeable competitor can often determine from pesticide use patterns the nature of the new GM traits under development,” the complaint states in explaining the corporate espionage concern.

The complaint maintains “the restrictions imposed by Bill 2491 are not rational.” As an example, it cites the county's “finding” that GM plants could potentially disperse into the environment through pollen drift, seed commingling and inadvertent transfer of seeds. “In fact, none of the Plaintiffs' crops creates any of these risks,” the complaint states.

Further, the bill “does not apply to all those who use pesticides in close proximity to people, although it applies to all of Plaintiffs' farming operations, including those which are nowhere near where people live, work or commute.”

Bill 2491 also violates the state's Right to Farm bill, which prohibits the county from limiting farming activities by declaring them a nuisance, the complaint alleges, and the county has no authority to regulate GMOs.

According to the complaint, none of the three companies are farming within 500 feet of schools, hospitals or assisted living facilities. They also maintain they use pesticides in a manner “consistent with generally accepted agricultural and management practices,” following label directions needed to control drift and protect aquatic resources and workers, and that these pesticides and their use are approved by the federal Environmental Protection Agency.

It also states that “Bill 2491 will cause damage to Plaintiffs' goodwill and reputation” and is “an unconstitutional exercise of police powers by the County since there is no reasonable relationship between Bill 2491's stated purposes and the means to accomplish those purposes.”

Hooser has repeatedly downplayed the threat of a lawsuit, saying it wouldn't play well for the companies to “sue for the right to spray pesticides around school.” He apparently failed to consider they might instead argue for their Constitutional rights to grow crops on ag land. Yukimura previously said she thinks “the court will strike it down.” If that happens, she said, “so be it.”

The plaintiffs are seeking attorneys fees and costs. Six attorneys are representing the plaintiffs, some of whom reportedly bill at about $600 per hour.

The complaint mirrors the concerns some of us have repeatedly raised about the bill, which began with serious weaknesses and was furthered impaired when “red shirt” activists pushed it through without proper scrutiny of the many amendments.

As I've stated previously, if the companies prevail, which is likely, we will be left with nothing but a huge legal bill and legal affirmation that the companies can continue as they have been.

And all because Hooser championed a badly flawed bill for his own political gain.


Anonymous said...

Time for County Council to get out the checkbook and send another how many million dollars of our tax money to Honolulu! All to massage a certain Council Member's waning libido!

Anonymous said...

Does the bill have a severability clause? Can the unflawed portions survive if some if it it stricken ?

Joan Conrow said...

Yes, it has a clause, though whether bill could survive depends on what is stricken:

Severability Clause. If any provision of this ordinance or the application thereof to any person, commercial agricultural entity, or
circumstance is held invalid, the invalidity does not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are severable.

Anonymous said...

It was a given that a lawsuit would occur.
Lack of friendly negotiations and a poorly written and rushed law are ingredients for failure.
The County will still spend money on the implementation of the law, pay for the court costs and probably have the law stricken. The courts may or may not grant court costs to the plaintiffs.
But, what is the big deal about lawsuits and money. Tim Bynam, his own self is suing the County and is looking for a big pay day. No love for Kauai with this well covered man.
The long lasting effect will be the the bad taste this law leaves with the big land owners. The land owners, like it or not have big time influence on the future of Kauai. The flaccid firebrands Hooser/Bynam will cost the county a great deal of time and money, but shucks Ma, they did the right thing, big Ag is bad, and B'Gosh maybe the Bio Tech Babes can console these 2 flaccid firebrands.

Anonymous said...

Case number? Link?

Anonymous said...

Send the bill$ for the damaged credibility of the companies to anyone with a red shirt.

Anonymous said...

Let's see how fast those attorneys offering pro bono services run for the hills or restate that pro bono really didn't mean "free". Joan you are right, this will cost the County millions ... thanks of lot Councilmembers! Maybe, just maybe, you'll actually listen to your legal counsel when they tell you it's legally flawed. Us taxpayers can't keep paying for your political agendas. We should also make a Charter change to make Councilmembers accountable when they act against their legal advice. In all of this drama, that's what really gets my goat. They were told it's legally flawed but acted against their advice and were too cowardly to release the legal opinion for the public to see. Yet, Council still have immunity from the financial consequences that will follow. That is shibai.

Anonymous said...

If there's to be any severability at all, it should apply to the Council, and five of them should be recalled immediately. I can hardly wait to see some of the "expert" witlesses like Vandana Shiva, Jeffrey Smith, Bill Freese, Don Huber, Nomi Carmona and a troop of others hauled into federal court and exposed for the charlatans they are. So we now have a completely useless ordinance promoted by a parade of mountebanks that will drain the county treasury. And the eminent Paul Achitoff and his ilk are all that stand between Kauai county and a financial abyss? Way to go.

Anonymous said...

To Hooser, Bynum, Furfaro, Yukimura, Nakamura, Chock:

Thank you for all that you just did for Kauai. You should all be ashamed of yourselves. Not sure what your agendas are, but you have lost the support of many of the Kauai people. You can convince yourselves that you did what was in the best interest of the people, but the people of Kauai are not as dumb as you think. Also, if you all think that the Babes against Biotech and all the other red shirts speak for the majority of Kauai, you will have a rude awakening come election day.

Anonymous said...

If the judge says the law is invalid before the effective date, then what are the damages?

Anonymous said...

"the people of Kauai are not as dumb as you think"

Weren't those red shirts "the people of Kauai"?

Anonymous said...

Weren't those red shirts "the people of Kauai"?

Hey dummy, I didn't say that there weren't people of Kauai. Although I know that many of them were not from Kauai, I meant that they don't speak for the MAJORITY of Kauai.

Anonymous said...

Aloha GMO Free Kaua'i Ohana,

This email list has gone silent with the holiday season, after the passing of the 2491 bill here on Kaua'i. We hope you enjoyed the break, and had a great holiday season.

So can we can rest in 2014 and assume that GMO's are going away here on Kaua'i and around the USA without doing anything more, that the job is done? Unfortunately no, we will have to remain vigilant in watching how 2491 gets implemented here on Kaua'i , and we will put out important news regarding bill 2491, as it moves into law, to keep everyone active and engaged on the issue, so that the voice of the people of Kaua'i is heard clearly by those who hold key positions in our local government.

In addition, it looks like the GMO issue is heating up around the state of Hawai'i, and the USA too. Below I link four online petitions, if you could take a few minutes to lend your name to each, that would be great. After that I list a few stories of note regarding GMO's in Hawai'i and the USA, if you would like to read more GMO info from the press.


** Petition to move Maui bill forward , very similar to Kaua'i bill 2491

** Tell the FDA: No Watered-Down, Voluntary Federal GMO Labeling Rules

** Tell the USDA to Stop Dow Chemical’s "Agent Orange" Crops

** Trans-Pacific Partnership (TPP) , will affect GMO labeling - Tell Congress to Stop Obama's Secret Trade Deals;jsessionid=E566832E7045056BDEC08B4E615FBA25.app332a?pagename=homepage&page=UserAction&id=623&autologin=true

Some stories of note regarding GMO's in Hawai'i and the USA:

*** A Lonely Quest for Facts on Genetically Modified Crops

*** Hawaii Ag Dept Heavily Redacts Public Documents at Syngenta's Request

*** Group Seeks Special Label for Food: ‘Natural’

*** General Mills: Original Cheerios are GMO free

*** Why I'm Still Skeptical of GMOs

Well, that's all for now. Know that we are regrouping for the new year, and we will have more local actions and information to come regarding GMO's on Kaua'i. Thanks for being part of the movement, and please remember that if anyone wants to sign up for this email list, they can go to to sign themselves up.


Anonymous said...

" just maybe, you'll actually listen to your legal counsel when they tell you it's legally flawed."
Just like in Bynam, the lawyers said trespassing is illegal but they went look anyway.
Same in TVR. County Attorney said must legally grandfather TVRs.
The red shirts screamed murder.

This new call to respect the County Attorney is
Ironic. Last year he couldn't be right. Now, its "you should have listened." You folks live in the world you created.

Caroline Kong said...

Mahalo Blake.

Anonymous said...

The Red shirts are not involved in the TVR mess, in case you missed it, the red shirts are a mix of people with many real estate moguls responsible for the best soils on the island now being commercial resorts with no farms anymore nor able to be farms again due to speculation and lies in signing farm dwelling agreements .
The group called the red shirts wants more develop able lands and have TVR's.

Anonymous said...

I take issue with the person who said "This new call to respect the County Attorney is Ironic."
Please show any example of when the council or PC did not follow the advice of the CA ever?
Is the county responsible for paying for the defense when the council members did not follow the legal advice given? Why did the people in favor of control argue to pass a weak flawed bill?Bullshit flying high...

Joan Conrow said...

Fascinating how the anti-GMO folks trash me and try to discredit my blog, yet use it to disseminate.

Anonymous said...

Hey dummy at 8:45, say what you mean if you're capable. Otherwise, step away from the keyboard.

Anonymous said...

Not to worry Joan. If these creatures like Blake had half the brains and a quarter the moxie you do, they'd have landed somewhere other than federal court in the embrace of the two bottom finishers in the last Council race. One could only hope that we have heard the last of these kukaemanu unless they pass the hat to defend the county, but I sorta think they're all hat and no cattle when it comes to kala for the cause.

Anonymous said...

And all because Hooser championed a badly flawed bill for his own political gain.
Joan, what political gain? A seat on Council? He'll get that either way. Chair? Or do you think he is drinking the coolade of the anti-gmos who want him for Mayor?

Anonymous said...

whose right......whose wrong
who cares!

All I know is herbicides and pesticides = Cancer

and that's all folks!
stick your head in the sand and hope?

Dr Shibai

Anonymous said...

Shibai does have a point.

Lets pass a good bill while they are litigating this one.

Anonymous said...

Can't we all just get along?......Ah NO!!

Anonymous said...

Well said Joan. When the Federal court strike this bill down and grant attorneys fees, can that come from the council's budget and salaries. I mean they've said it numerous times that if the courts strike it down - oh well. Oh well??? Just goes to show the mayor knows what he's doing and so does trask. Eat that one haters!!!

Anonymous said...

What they did with the whole Chock being voted in was so unethical... Just for that I hope Hooser, Bynum and Yukimura gets called out and the bill is overturned!!

Anonymous said...

This lawsuit is exactly what Bynam/Hooser anticipated and wanted. They get more publicity and if they have their druthers will be able to have Earth Justice and other nationally recognized groups assist in defending Kauai. Publicity hounds. Two of our council people have sued the County purely for personal gain. Chock and Bynam should both be recused from any vote on giving county funds for lawsuits, they definitely be lovin' suing and have personal feelings on using the County for their own cashbox.
Think about it, 28 percent of the current council has sued their County employer and ultimately Kauai's people to further their personal gain....Maybe this is good leadership and all Kauai citizens should sue their employers for manini stuff and hope for free dough......Oh yeah, another Coincil guy, Hooser did NOT pay his GET and somehow got this holy grail of tax reduced thru a settlement.....anyone who has been in business knows that the tax department NEVER negotiates GET....I guess maybe unless you are a Hooser and get special handling. Whether you are for the GMO law or not, some of our elected (or appointed by the same ilk) council members, lack integrity. Kauai, a special place where you get rewarded for bad behavior.

Anonymous said...

Read KPD Blue for the lowdown on Mel Rapozo. And read this blog for the insanity that was our former prosecutor's reign of terror.

Anonymous said...

Mel was just acting like any red blooded American . Tony Sommers was not considered the most accurate reporter. He couldn't get anyone in power to talk, as they knew the result would misquote . He was literally run out of the biz, a nice guy but inaccurate. Joan can get people to speak and she is careful in her quotes

Anonymous said...

Does the severability clause allow for the deletion of the seed companies and that means that whatever remains would apply to all pesticide users? So if the notice and posting remain all farmers would need to comply? Or would it be broader and all pesticide users will need to comply? Lets spend more money to fight the chemical soup that is modern life.

Anonymous said...

Mason chock should be booted off the council, the vote for Bill 2491 recalled and the veto upheld. kipukai should be sworn in since he was the next with the most notes. can the community start a petition for this?

Anonymous said...


Anonymous said...

I'd be more than happy to sign the petition.

Manuahi said...

The People of Kauai have only themselves to blame for electing zealots to the Council. And for those who did't vote.....ditto.

Manuahi said...
This comment has been removed by the author.
Manuahi said...
This comment has been removed by the author.
Anonymous said...

"Mel was just acting like any red blooded American"

Call him a haole and see his reaction……..

Anonymous said...

@ 1:26 PM's statement

Only white Caucasians can be an American.

What's your odious point?

Anonymous said...

Folks - - We will have the same council come November, except maybe Bynum. If Hooser decides to run for mayor, Bynum will have a chance. Kipukai will be elected this time around. Mason is a sure in.

Anonymous said...

I don't think he's a Sure In. He should just stick to what he was doing. Politics are bring out the worst in people.