It was never more apparent that Kauai is a pawn in a bigger battle than when mainland-based nonprofits moved this week to intervene in the defense of our controversial new pesticide/GMO regulatory law.
Through the motion filed in federal court, Earthjustice, Center for Food Safety, Pesticide Action Network North America and Surfrider are trying to stay aboard the train they built, engineered and promoted, with Councilman Gary Hooser waving from the caboose and calling “all aboard.”
The motion states the ordinance goes to “the core of Proposed Intervenors' organizational interests.” And therein lies the rub. What's good for the national political agendas and fund-raising desires of PANNA, Surfrider, Earthjustice and CFS isn't necessarily what's best for little Kauai and our citizens.
Heck, we could have created buffer zones simply by amending the zoning ordinance. But that wouldn't have given Gary the national exposure he sought. And when Gary chose to align himself with the mainland groups — he's now actively shilling for CFS — he signed all of us up for the ride, too.
To make it seem like it's still about us, rather than their national agenda, they also brought in a new “community group” — Ka Makani Ho`oponopono — comprising people who live and work near the seed fields, and so “have unique personal interests in the transparency and protection guaranteed by Ordinance 960,” according to the motion.
But wait. Wasn't the bill written expressly for those very same people? Because if it was about protecting Kauai from pesticides, it wouldn't have targeted just five agricultural companies on the leeward side.
At least now the mainland groups are finally admitting, in their motion, that they “vigorously supported” the bill, helped write it and "actively participated in the legislative process to ensure its passage.” The admission finally exposes as false the insistent claims that the “red shirt” movement was a spontaneous, leaderless, local initiative.
The motion claims the county “does not share, and will not adequately represent” the proposed intervenors, which have “substantive interests in ensuring Ordinance 960's implementation.”
That's new. Because Hooser told me himself, when I expressed concerns about implementation: It doesn't matter if the law is enforced, all that matters is getting it passed.
As supposed proof of the county's lackadaisical approach, a press release issued by Earthjustice and CFS notes that although the chem companies sued the county in January, “six weeks later, the County has yet to even retain counsel to defend itself....”
Hmmm. As I recall it, the county's hiring of special counsel was delayed first by the promise of pro bono representation, a charade that fell apart, and second by attorney Lance Collins and his protest of the pro bono procurement process. Curiously, though Lance claimed he was working solely on his own, the motion references the gist of his protest as evidence of the county's attorney's intent to “undermine the County's defense of Ordinance 960.”
The motion also references the 5,500 pounds of restricted use chemicals annually applied by the companies — which again exposes as false the “18-ton” (36,000 pounds) figure that Gary intentionally introduced into local lore.
But despite its kernels of truth, the motion's “factual background” section contains a lot of unsubstantiated statements, including:
The constant application of pesticides...has detrimentally affected human health and the environment on Kauai. Pesticides drift beyond fields of application to pollute neighboring lands, harming, plants, wildlife and people.
Yet the only "proof" offered is a declaration from Malia Chun that she developed adult asthma after moving to Kekaha, and her daughter suffered bloody noses and doctors couldn't diagnose the cause.
As a related aside, Chris D'Angelo of The Garden Island yesterday reported Mark Sheehan from Maui claiming:
“On Kauai, for example, a documented correlation has been made between rising levels of pesticide application and rising incidences of birth defects."
Though I asked both Chris and Mark for verification of that “documented correlation,” neither responded.
Similarly, in his declaration, Surfrider President Gordon LaBedz claims the Kauai chapter “paid for some very expensive preliminary tests for pesticides and we found toxic levels in a number of streams.”
But Carl Berg, the group's vice president, recently told me the results had been “inconclusive.”
In a communique posted on Facebook, this is how CFS solicited participation in the motion to intervene:
In order to act, CFS and our community needs your help!
Are you aware of bill 2491? Are you concerned about the risk to yourself and/or your family’s health or the environment from pesticide spraying? Do you live near spraying or have you experienced adverse health effects previously that you attribute to unregulated and undisclosed pesticide spraying? Do you think it has damaged your property or native environment? If so we’d love to hear your story.
Except, how could you attribute your health effects to something you weren't even sure had happened, since it was “undisclosed?”
Ultimately, the court will decide whether the groups meet the four-part test for intervention by right:
The application must be timely; the application must have a significant protectable interest; the application must be situated that disposition of the action may, as a practical matter, impair or impede the application's ability to protect that interest; and the applicant's interest must be inadequately represented by the existing parties in the lawsuit.
The motion contends the mayor already made it clear he won't be representing those interests when he vetoed the bill and declared it "legally flawed."
The motion also claims the intervenors “will offer unique elements to the present litigation not shared with—and in fact neglected by— the existing parties.” But since the county hasn't responded to the complaint yet, we don't know what elements it will include in the litigation.
What we do know is despite all the angst, money and energy devoted to this issue, Kauai residents are no closer to knowing whether the chem companies are actually poisoning us, much less getting any relief if they are.
But it's working out just fine for the self-interested "public interest" groups that are playing a bigger, different game.
Listening to the testimonies of the doctors, nurses, parents, teachers, and neighbors point out 'something' is wrong, I would be overjoyed for any help to figure it out from any of these groups. Yes, they get involved to help people and also, to get a cut of any monetary damages awarded.. so they can help other communities for free; I don't see a problem with that. All of these groups have done great things and helped to bring some justice to a lot of people and places across the country. I for one am very grateful to these groups, they've helped to level the playing field for many communities suffering abuse.
I would think, after listening to the above testimonies, most people would want to know what is causing all of those problems asap and would welcome any qualified help - especially for free. I would consider it a bonus if their 'winnings' are passed on to other communities suffering similar fates.
On another note, having lived in Hawai'i for decades, if someone asked me who my local heroes were, both you and Gary Hooser would be right up there on the list. It pains me greatly to see this rift between you. Can this be fixed?
I certainly hope so.
Dear 11:05 -- You wrote "I would think, after listening to the above testimonies, most people would want to know what is causing all of those problems asap and would welcome any qualified help - especially for free. "
Yes, I agree, but what I've been trying to say all this time is we AREN'T figuring that out, and these groups are doing NOTHING to help us figure that out. And certainly none of this is going to be "free."
Thanks for considering me a local hero. As for the rift with Gary, I'm sure it could be fixed -- once he starts telling the truth and stops running on ego.
It was never more apparent that nothing will satisfy Joan in her unremitting and snarky flogging of those who support Bill 2491. Recently, she criticized Earthjustice and CFS for failing to come to the defense of the law, based on her misinterpretation of the commitments we actually had made. Now, she takes us to task for doing exactly what we promised. Having nothing more accurate or less hackneyed to offer, she now complains that the law's defense is being offered by "mainland" groups. In fact, one of the intervenor groups is a hui of Kaua'i residents who live near fields being sprayed--people who have gotten sick. Earthjustice has been offering pro bono legal services in Hawai'i for 25 years--ever since Joan transplanted herself from wherever. Each of the other groups has many members who are long-time Kaua'i residents, who have every right to defend themselves from the corporate bullying. So this latest charge suggests that, now that Joan has established herself as the voice of Bill 2491's supporters, she'll keep posting anything she imagines might paint the law's supporters in a negative light. Sad, but there it is.
Paul -- I did indeed report that one local group is involved, and EJ is most definitely mainland-based.
And please don't misrepresent me or my views with your snarky assertion that I am the "voice of Bill 2491's supporters," which includes the chem companies.
I am the voice of Kauai residents who abhor the shameful fear-mongering and political bullying that resulted in our Council passing a deeply flawed bill that fails to actually reduce pesticide use or address health and environmental concerns.
Btw, for those who don't know, Paul is the lead attorney for Earthjustice.
I meant to say "the voice of Bill 2491's opponents." E kala mai. And yes, of course Earthjustice is "mainland based." No news there. And what of it, Joan? Earthjustice then can never have any good reason to become involved in any Hawai'i issue, because Earthjustice did not originate in Hawai'i? That makes as much sense as saying what happens on Kaua'i is none of your business because you weren't born there. Why not leave off the constant snark and ax-grinding and personal potshots? It's not terribly productive. We get it, you don't much care for Gary Hooser or how he's handled this matter. Are we to suppose that you don't have any ego in this? And who cares? Gary has an ego, you have an ego, we all do--how about moving on. There's a lot more at stake here than your opinion of a person's personality.
Oh, yes, Paul, I'm acutely aware of just how much is at stake here. A legal precedent for state pre-emption, for one.
I point out the mainland base of the groups merely to show that they have specific agendas that may differ from the interests of Kauai County taxpayers.
And, yes, I'm sure you'd prefer that I shut up and stop pointing out the bullshit that's going down. But that isn't going to happen.
As for the snark, ax-grinding and personal potshots, I dare say you might want to hold up the mirror there.
Right on, Joan!!!!
It is unusual for any attorney to get involved in tete-a-tete on a Blog, discussing a current lawsuit.
On the other hand, it is great that the big Mainland groups are here. National exposure will give Gary Hooser and Tim Bynum in gaining political power, fame and influence. They are truly for the people.
These Mainland Groups guarantee national exposure. This exposure should lead to fewer Tourists who do not want to be poisoned and will boycott this island and the terrible environmental damage being done.
After the Hotels lay a few hundred people off, restaurants are empty and a general decline in the economy occurs, then maybe we can get some results.
After everything is said and done, whatever economic hardship is endured, Kauai will be able to stand strong and say "We did the right thing". We broke some eggs, but we have a great omelet.
Thank you Tim and Gary, your honesty, fair mindedness, inclusion, compassion and selfless dedication to the cause will never be forgotten.
I'd like to remind everybody what the final version of Bill 2491 states: "In 2012, restricted use pesticides were used on Kaua‘i by agricultural operations (7,727 pounds and 5,892 gallons, or 13%), county government operations (28,350 pounds and zero (0) gallons of Chlorine Liquefied Gas for water and wastewater treatment, or 49%), and non-government operations for structural pest control termite treatment (25,828 pounds and 20 gallons, or 38%)."
It is interesting if not strange that if we are all so concerned about pesticides we are going after the minority user at 13%, isn't it? It kind of looks like agriculture is being unfairly targeted, just by looking at the numbers.
Which doesn't even touch the issue of the type of pesticide and their toxicity. For instance that 38% used by termite treatment are fumigants, they don't spray deodorants when they tent your houses just FYI.
Wow, Joan! Seems like you are sticking the needles in the right holes!
Regarding Tim n Gary they will gain popularity Nationally but will most definitely lose popularity locally.
The only time an Earth Justice Attny will get into a blog showdown is when he feels threatened or insecure. Joan as far as I know has never said GMO spraying is great to have in anyone's back yard. But she has said many times to "Do it right the first time " or you will be spinning your wheels forever and nothing will be done.
Hooser n Bynam will again make us pay for their personal gain and incompetence.
Though Joan and I don't always see eye to eye...... My money is on Joan.
Keep up the excellent work Joan.
And as for the Surfrider turkey LaBedz he should not be in an administrative position. His biased opinion of our mayor actually sucks.
did not see joan giving any input to this bill just talk and ridicule, what's rite? What solutions do you have to offer Joan? You could have just as easily as you criticize the supporters of the bill, Tim and Gary written a "better bill" Time to put your money where your mouth is, Put up or shut up.
You and your organization are nothing more then just another mainland Corporation that has infiltrated many communities throughout the United States. Being paid big bucks and helping no one except yourself as you and your lobbying political machine attack . Your Corporation just sprays a "different" type of poison yet perhaps more dangerous.....GREED...........
Truly a bill so poorly written is not something to be proud about. Harvard or Yale graduate????
Donovan-- I made suggestions and offered solutions directly to Gary to help him write a better bill before he ever introduced it. I also sat down with him after it was introduced and discussed my concerns and ideas. After hearing his responses I knew the course was set.
I did "put up" and I'm not gonna shut up.
Does Paul get paid by the hour like a regular high-powered attorney? I think you should take it as a compliment Joan that he spent some of his working hours to read and comment on your blog. Or perhaps those comments are part of the pro-bono legal opinions he promised! If so, it just proves the adage that you get what you pay for.
” Wow, Joan! Seems like you are sticking the needles in the right holes!”
Needles that are needed, now more than ever.
Needles to pin to the wall sleazy lawyers and self-serving politicians. Needles to puncture the gasbag egos of people who, convinced that they crap bigger than Kauai, suck the breath from the land to inflate themselves. Needles for the acupuncture-healing of an island suffering from an infestation of industries that burrow into its skin and strip mine its health, its soul and its sense of place.
I'm a fan Joan, have been for a long time but I think your focus on Gary, Tim and all the other players in the "red-shirt" camp has gone beyond the point of being productive. You've made your point in regards to the way this all played itself out and now it seems more like "beating a dead horse". I agree with Paul that its more important to figure out how to move forward. I know you support environmentally sound practices that reach across the full spectrum of pesticide users so how do we work to make that happen while trying to fix what we are left with? I cannot agree that Gary and Tim were motivated purely by ego, I believe they had good intentions and started off with a sincere desire to address an issue that was brought to them by their constituents. Did the passage of bill 2491 take on a life of its own, I think so. Did outside players get involved, obviously (on both sides). The chemical corporations have limitless resources and frankly, in order to be successful in passing any kind of legislation to protect people and environment, we need the help. Obviously, the state and county lack the will to affect real change.
Going through the process of passing the bill and litigating it, will in the end help us to figure it out, albeit painfully. In the meantime it has created awareness and community involvement in a community that has historically been apathetic. Maybe it wasn't/isn't pretty but it is what it is and we need to move on.
No disrespect but I think you've moved into the realm of it being something personal between yourself and Gary (and others), an ego thing if you will and this public thrashing plays right into the arms of the anti-2491 camp which I really don't think you intended to do.
The declaration of Gordon La Betz says it all, "I am from Blank, i have lived in blank for blank years. Gordon, guess you did not write the declaration you legally declared as yours.
11:22 Methinks that after a lawsuit and the Corn Ag wins. Any Ag bill is dead for a long time.
Methinks if in this Nov election Tim gets the boot (he lawsuit rich already), Gary gets the shaft (he pension plan rich already)
then Shay and another candidate will boot the law...end of lawsuit, the Feudin' haoles will moan and cry, songs will be sung and all is at peace in Wonderlund
Feudin haoles? Shay attacks people. Okay if you're going after criminals but not if you're one of 7 trying to accomplish something positive. Between Shay and Tim one is a bully and one is a victim. Even after the lawsuit she's still on the attack.
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