Monday, August 25, 2014

Judge Strikes Down Kauai GMO/Pesticide Law

A federal judge has struck down Ordinance 960 — Kauai's pesticide/GMO regulatory bill — finding that it is pre-empted by state law, and therefore invalid.

In issuing his Aug. 23 judgment, released this morning, Judge Barry M. Kurren enjoined Kauai County for implementing or enforcing the law, which was due to take effect Aug. 16, but extended to Oct. 1. However, he did not rule on all the issues. 

In his order, he states:

Because the Court finds that Ordinance 960 is without effect due to state preemption, the Court refrains from addressing Plaintiffs’ due process and equal protection claims. Similarly, in light of the conclusion that state law preempts Ordinance 960, the Court declines to address the summary judgment motions as to all of the remaining claims.

The decision vindicates Mayor Bernard Carvalho Jr., who vetoed the bill on advice from the County Attorney's office that it wouldn't withstand a legal challenge. The Council initially failed to override his veto, then installed Mason Chock to fill a vacancy on the panel and cast the deciding vote to override. The judge did not rule on the validity of Chock's appointment.

The decision also sounds the death knell for a Big Island ordinance banning new GMO cultivation and a Maui ballot initiative calling for a moratorium on GMO cultivation because it makes it clear that only the state can regulate the GMOs and pesticides.

The judge wrote:

This decision in no way diminishes the health and environmental concerns of the people of Kauai. The Court’s ruling simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County.

In deciding a motion for summary judgment, the court’s function is not to try issues of fact, but rather, it is only to determine whether there are issues to be tried.

Judge Kurren agreed with Margery Bronster and Paul Alston — attorneys for the seed/chemical companies — who argued the counties have no inherent power, but only the authority granted to them by the state, and that Hawaii statutes already designate the state Department of Agriculture as the entity charged with regulating pesticides.

The judge wrote:

Ordinance 960 regulates pesticides in two ways. First, it imposes various pre- and post-application reporting requirements. Second, it establishes an array of pesticide buffer zones in which no crops to which pesticides would be applied may be planted. Accordingly, the “subject matters” regulated by Ordinance 960 are record keeping and reporting, and areas of permissible planting and associated pesticide use.

Though not utilizing the specific phrase “buffer zones,” the state regulatory framework expressly addresses the DOA’s role in determining unreasonable adverse effects of pesticide use including the use “in or adjacent to certain areas.” Additionally, state law expressly sets out reporting requirements surrounding the use of RUPs. Accordingly, the Court finds that the statutory scheme and associated administrative rules cover the same subject matter as Ordinance 960.

He found that the Board of Agriculture and Department of Agriculture clearly have authority to regulate the distribution and use of certain pesticides, and are empowered to conduct inspections:

That counties and local governments are wholly absent from this framework of rulemaking, oversight, and enforcement evidences the legislature’s intent that the State have exclusive authority over pesticide regulation.

Accordingly, the Court holds that the pesticide provisions of Ordinance 960 are preempted by state law and are barred from taking effect.

Under similar reasoning, he also found:

Accordingly, the Court holds that the GMO notification provision of Ordinance 960 is preempted by state law and is barred from taking effect.

However, he also noted that counties do have some say in agricultural matters:

The fact that the state Constitution declares agriculture to be of statewide concern, does not by itself preclude all county regulation in the entire field of agriculture, or trigger a requirement that the State must expressly grant the counties specific authority in the area of agriculture. Indeed, art. IX § 1 states “the state shall provide for the protection and promotion of public health,” and art. IX § 5 provides that housing is of “statewide concern.” Neither constitutional provision indicates that the counties have any role to play, but this does not preclude the counties from enacting ordinances affecting either area where an ordinance falls under the counties’ generally granted powers.

[T]he legislature has expressly recognized that the counties have some role to play in
enacting regulations that affect the field of agriculture. This conclusion that the
County has some authority in the area of agriculture is, however, only the first step
in the required analysis of County police power under HRS § 46-1.5(13).

In addition to empowering county governments, “HRS § 46–1.5(13) was intended to be a provision mandating the preemption of any ordinance that either conflicted with the intent of a state statute or legislated in an area already staked out by the legislature for exclusive and statewide statutory treatment.”

He further found that Ordinance 960 does not conflict with the Right to Farm Act or jeopardize privacy provisions of the state public records law, and that disclosing the location of pesticide applications was not pre-empted by FIFRA, the federal pesticide laws. Nor does federal law preempt the annual GMO notification provision of Ordinance 960.

The county issued a statement saying the meeting on rule-making for Ordinance 960 scheduled for tomorrow has been cancelled. The EPHIS — environmental and public health impact study — will not go forward, either, since it struck down along with 960.

The judge also denied the defendant's motion for dismissal on the grounds that the U.S. District Court lacked jurisdiction.

The county was joined in defending the law by Earthjustice and Center for Food Safety. Earlier, Earthjustice attorney Paul Achitoff had expressed confidence, saying he considered the U.S. District Court "friendly." 

 But today the Star-Advertiser quoted Achitoff as saying he was "disappointed" by the ruling:

"It has unfortunate consequences on Kauai and throughout the state. The state has shown complete disregard for problems that the pesticides on Kauai has been causing. The federal court decided that the state only has to the power to do anything about it but the state has refused to do anything."

However, that's not true. The state negotiated with the chem/seed companies for voluntary pesticide use disclosure and conducted some statewide water samplings that found low levels of pesticides. More is needed, but now that the state has been totally reviled, alienated and dissed, and the election is nearly upon us, where's the impetus? 

As I and others have said throughout the months of turmoil, angst and bitter conflict that accompanied this bill's passage and adjudication, if folks would've started by pressuring their state Legislators to act, things might have turned out differently.

Instead, Councilman Gary Hooser convinced them to put their faith in him, and his big gamble. While he won national notoriety and local political acclaim, he lost the battle, leaving his supporters with nothing, and little recourse for future actions.


Anonymous said...

The DOH study acknowledged that the state lacks data on transport of pesticides into state waters and that testing should be conducted when there's storm runoff. That isn't gonna get done unless people keep up the pressure. The state shouldn't get a pass.

Anonymous said...

If only someone could have predicted thi... Oh wait!

Anonymous said...

I guess a little pesticides in our water/soil is ok. And they'll raise the standards in a few years so a little more is ok.

Anonymous said...

Joan, thank you for sharing! Maybe just for the heck of it you can post how much this cost us the taxpayers. (and didn't cost Hooser, Bynum, Yukimura, Chock and Furfaro)

Attorney Fees:
County council meetings:
Public hearings:
OED Compliance specialist:
Support staff salaries:
Etc, etc, etc

Anonymous said...

Thanks once again Joan! If only they would have listened. And now, the public should know how much this fiasco has cost them....
preferably before the election.

Anonymous said...

too bad we didn't know then what we know now...oh wait, everyone one with common sense knew Gary and sheep were wrong at the start. now the aftermath, will this affect the election? I hope so. Give the heavy boot to Hooser, Bynum, Yukimura, Furfaro and Chock and vote in anybody else. Can't be any worse. They all had a fiduciary duty for us tax payers and failed. Aloha Oe!

Anonymous said...

The joke is on Kauai. Not only did Gary's great fistifying, stop Kauai's embrace of herbicide and GMO control, he also apparently has stopped the Big Island and Maui in their efforts.
How could so many people be so wrong? The social divide between the NorthShore and Westside, Haole/Local or whatever you want to call is real. This emotional conflict is at Gary, Tim and Chock's doorstep. They need to apologize. They were wrong.
Joan, regardless of her personal point of view has maintained that 960 would be dumped by the court. Ms. Joan has received tremendous disdain by Gary and his fistees. She has shown great strength, the attacks on her by Gary's fistees have been purty f*ckin' bad. I apologize for them, Joan, agree or disgree, you show great fortitude to take your lonely stand on this incestuous gossipy island.
I support Big Ag and I am happy that Gary, Tim, et al did NOT listen to her. If Joan was "in charge" there would have been an effective, legal and enforceable law in hand.
Gary and Tim's egos threw the island into this dilemma. Big Ag is more powerful than ever. The State Ag offices are piss*d off at Kauai.
The Mayor is vindicated, the County Attorney (for once) gave solid advice. The sun is out, the sky is blue and all is right with the world.

Anonymous said...

I support Big Ag and Big Blog (joan conrow!)

Anonymous said...

Chock should have done the right thing and rescused himself from overriding the the Mayor's veto. He didn't have enough knowledge on the bill as the other members to make a sound decision. It's obvious that he had an agenda as well as Tim and Gary. Chock also decided to take a Vice Chair position with no experience. Mel should've been the Vice Chair. I don't trust Chock, Hooser, and Bynum. They cost the tax payers so much money. Chock ruined his reputation of good integrity the day he signed up to be Gary's puppet. I am not voting for those 3 for sure because of all the money they have cost the tax payers. We need Perry, Brun and Kipukai in office!

Anonymous said...

HELP! The crazies are still loose in the asylum!

Anonymous said...

Yep, add Kualii, Brun and Perry to the top three candidates and we should be okay.

Anonymous said...

I support the BIG GUN JOAN.

Joan, keep up the good work!

Anonymous said...

How do you? Come on in old friend
You know you're welcome any time
Sit right down and we'll have a talk
And you can tell me whats on your mind

People are talkin' about our problems,
some people talk but they don't know
What'll they do when there really is a problem?
20 years from now when the corn won't grow

Well if I were you I wouldn't worry,
about the things that we can't see
And don't go buyin' noone's answers,
if your question was for free

Anonymous said...

So Al Castillo is really smart then......

Anonymous said...

Great post Joan! Huge Mahalo for covering this! Whats funny is how the Pro- Bill people are now calling corruption. Not that it matters at all but, they refuse to accept the fact that this was simply a legally flawed Bill that never should have been passed. The Mayors Veto, the county attorneys opinion, it was all to protect the people of Kauai from all the legal fees because this bill was destined for failure. And to pursue a better avenue to satisfy the intention of the bill. But noooo, they didn't want to hear that. They wanted to dress up and parade around and demonize anyone who didn't totally commit to the group think cultish behavior. So now they are calling corruption on the Mayor, the county attorney, the federal Judge, the GMO companies, the State, Obama (lol) etc... Geeze just admit you were wrong, take some responsibility, learn from the mistake. "Wake up" and "rise up" to the fact that the only "corruption" that took place was between Gary, Tim, Joanne, Jay, and Mason. They actually knew better and cannot claim ignorance and still voted for the dud. And now they think they can just be nice and get voted back in? Uh NO! You folks have public apologizing to do, and have to earn the respect of the citizens of Kauai back and even then your probably out. Joanne especially you! You have a law degree and should have known better. Im really on the fence with you Joanne. Prove yourself! Gary-Nothing could redeem you. Tim your out! Mason..sorry dude, hope your short lived popularity among the loudest surfer/ druggie/ fringe/ extremist self righteous hippies was worth it, Jay- I thought you from Waianae, grow some. Mel and Ross thank you for your excellent service and being such great examples of leadership. The people of Kauai look up to you. You kept it classy and clean and you were intelligent for listening and learning through the process. Aloha!

Anonymous said...

This part is interesting. "He further found that Ordinance 960 does not conflict with the Right to Farm Act or jeopardize privacy provisions of the state public records law, and that disclosing the location of pesticide applications was not pre-empted by FIFRA, the federal pesticide laws. Nor does federal law preempt the annual GMO notification provision of Ordinance 960"

Does that mean the County could mandate disclosure?.

Anonymous said...

Melvin Rapozo is and forever will be a syndicate slave who set up the murder of Aurero Moore.

Ross Kagawa has some kind of brain damage. Can anyone understand him when he talks?

Anonymous said...

Achitoff had expressed confidence, saying he considered the U.S. District Court "friendly."

So, if Achitioff can’t write a law that would pass muster in a “friendly” court, then he must be a pretty crappy lawyer.

Anonymous said...

6:39 Yes, Jay really turned out to be a wimp. Following Gary and Tim is one thing, but to vote Mason in, on the Council knowing that Mason was Gary's boychick is another. Jay was the grand orchestrator of the Anti-Ag process. He was afraid of the mob and of the midnight chanting.

But, perhaps Jay's worst action was to agree to pay TIM Bynum $290,000 from the taxpayer.
The payola to Bynum is Jay's and the Councils lowest point, maybe the lowest in the history of the County. Think of it, rewarding your fellow elected member big money, even though he had an illegal rental...Shame.
Elected to serve the people?

Anonymous said...

@ 6:42
No. Read the order. The state has authority over disclosure.

Anonymous said...

Way to go, Gary, indeed! However, I don't agree with your solution, Joan: ". . . if folks would've started by pressuring their state Legislators to act, things might have turned out differently." What if the people that were concerned had (1) gone to the biotech farms and learned how they actually operate, (2) raised the issues that they were concerned about with the farms, and (3) asked the farmers to work with them to craft a bill that would address their issues, without threatening the existence of the farms? The Good Neighbor Program did a pretty good job in addressing the main concerns and it was agreed to by the biotech companies. Better to start off negotiating with folks than attacking them, mislabeling them, questioning their intentions and introducing legislation without the input of those most directly affected.

Joan Conrow said...

I agree that also would 've been a good strategy . My reference to the state was primarily in regard to testing.

Anonymous said...

There are possible county mandates allowed to be enforced by the enactment of HRS 46-1.5 with respect to the concerns of the public in any ag related situation . It is only the beginnings of the process to legislate a mandate. Not impossible by any measure.
Legal minds of this movement prepare your arguments flawlessly or else face a similar wrath as present.
Your efforts to help us have some control over this horrible situation w/ state regulations that are laughable at best w/ all due respect to the under budgeted depts. is greatly appreciated by many of us that are so busy w/ our kuleana to Ohana we can't express our selfs about this critical issue.
You must mount an appeal of some kind using HRS 46-1.5 (13) as your instrument of record, find a way to use this provision given within the law to correct oversight or any problem that may fall thru the cracks.
Make no mistake every leading scientist from all nations say that random testing is worthless, only during runoff accurate readings occur.

Anonymous said...

7:19 Too true "Better to start off negotiating with folks than attacking them, mislabeling them, questioning their intentions and introducing legislation without the input of those most directly affected." But there would have been no role in this process for Hooser and Bynum who haven't the character,temperament, good will or standing to pull this off. They carved out their role and can stew in the mess; too bad they dragged the County down for their day in the sun-not that it matters to them. If it did, they would withdraw their candidacies.

Anonymous said...

Tim's lawyer was Margery Bronster. Conspiracy theorists wassup wit dat? Is Tim a plant for biotech/chem? Are he and Gary being paid to engineer passage of crappy laws to undermine the movement? Who are their masters? Check for Swiss bank accounts with names like that corporation in Breaking Bad. In fact, didn't the meth's main ingredient come from some Swedish multinational. What is Kauai's biggest problem? Meth! Where is Syngenta from? Europe! Think, people.

Anonymous said...

Re: 5:41pm

It was Maunakea Trask.

Chuck Lasker said...

There is talk of a SuperFerry again. Maybe that can keep the activists busy for a while?

Anonymous said...

Anonymous @ 7:19

"What if the people that were concerned had (1) gone to the biotech farms and learned how they actually operate, (2) raised the issues that they were concerned about with the farms, and (3) asked the farmers to work with them to craft a bill that would address their issues, without threatening the existence of the farms?"

The goal of the antis is to remove all modern ag tech from Hawaii. There is no middle ground. Ag research is evil, doncha know, and not "real" agriculture. It saddens me that so many of the antis would laugh at the climate change deniers and young earthers, yet happily reside in the MonSATAN echo chamber.

Anonymous said...

Gary Hooser says one ruling by a federal judge doesn't decide the issue. Hang on to your wallets. The taxpayers are going to fund his Crusade. He really doesn't give a shit.

Anonymous said...

The Hawaiʻi Alliance for Progressive Action (HAPA) is a Kauaʻi-based, statewide organization dedicated to revitalizing grassroots democracy and advocating for people, community, and our natural environment. Gary Hooser is the president. This organization receives public donations.

Joan, can you check with ethics or campaign spending if this is proper? This appears to be a huge conflict in which Gary is using his position as a council member to move forward the agenda of his organization.

Joan Conrow said...

I agree that Gary's involvement with this group is hiighly inappropriate while he's on the Council, especially if he is voting on ag/gmo issues. I'll check it out.

Anonymous said...

@ the first 6:58 post. Your insidious mewling makes you sound like one of the Council candidates that is seriously slipping in the poles. We'll see you on November 4th ........Too funny!

Anonymous said...

Hooser has said that he wants to work with the seed companies on this issue. Yet look at the kinds of thoughts his constituents have (from the H.A.P.A. FB page):

"M. H. - Make all chemical company employees pay. Call them out at the grocery store and everywhere they are. Do not allow them into your businesses. Escalate. The time is now!"

"Its time for warfare. Seriously people fight these assholes with all you have. You must get in the face of these crooks and make their lives a living hell or it will not stop. Do NOT expect the system to work. It will not."

Anonymous said...

While you're at it make sure if Kaneshiro and Brun get elected they in turn recuse themselves from same issues.

Anonymous said...

6:58 If Ross has brain damage, why is he on top of the primary election? You're the one with brain damage, little bitch. Go to Hooser and Bynum's General Election parties and bring some mouthwash and Kleenex with you.

Anonymous said...

While you're checking on Gary's potential conflict, please check if he received any compensation from HAPA, or from anyone for his speeches around the state. Any income must be reported in his ethics disclosure form. Thanks again.

Anonymous said...

@6:58. Everyone born and raised here understands him when he speaks. Everyone born and raised here understands how the system works. Its only in the last 8-10 years that you transplants started making noise, did all this council nonsense drama start.

Anonymous said...

Now that Mayor Carvalho has been proven correct, will all of those rude people who shouted him down when he tried to explain his position apologize? Mayor, I salute you. You acted honorably and with dignity, unlike the red shirted boors.

kokuaguy said...
This comment has been removed by the author.
Joan Conrow said...

Dear Kokua Guy,
It's unfortunate you didn't also find the time to read the 38-page ruling, which I also linked to. It includes numerous case study and Hawaii Constitutional citations.

That way you could have spared yourself the embarrassment of coming across as an alumnus of the Andy Parx School of Law, pedantically pontificating when you don't know WTF you're talking about.

Anonymous said...

Read? Who has the time to read? I know what I know from listening to KKCR on weekday afternoons.

Anonymous said...

fun fact about mr and mrs kurren:

Tainted Federal Judge just screwed the people of the Big Island

by Jon Rappoport

November 26, 2014

And he’ll do it again to the people of Maui, who voted to block Dow and Monsanto from continuing GMO/pesticide experiments on their Island.

Read my previous articles (archive here) about Judge Barry Kurren and his wife’s connections to Dow and Monsanto, via The Nature Conservancy and First Hawaiian Bank.

Exposed: the Judge in the Monsanto-Maui lawsuit is tainted
by Jon Rappoport
Exposed: The Judge in the Monsanto-Maui lawsuit is tainted

By Jon Rappoport
November 25, 2014

In a previous article, I ran down Judge Barry Kurren’s wife’s connections to big biotech in Hawaii.

Now I have more. Much more.

Judge Kurren is overseeing the Monsanto/Dow lawsuit against Maui, where the people recently voted to halt Monsanto/Dow GMO research.

Does the Judge have a conflict of interest?

Is the Pope Catholic?

Until at least the fall of 2011, Judge Kurren’s wife, Faye, was a trustee of The Nature Conservancy (TNC), a 6-billion-dollar environmental group.

TNC specializes in working with mega-corporations, who donate major money, in return for receiving TNC’s “good housekeeping seal of approval” as friends of the environment.

It’s all very cozy.

In 2011, TNC leveraged a blockbuster deal. Dow pledged a $10 million donation. In exchange, Dow could forthwith use the TNC logo on its site and all its products.

That’s like painting a cobra’s hood with Mr. Rogers’ face.

This would be the same Dow whose GMO/pesticide experiments on Maui the voters decided to stop.

The voter stoppage provoked the lawsuit from Dow and Monsanto.

Faye’s husband Barry is the Judge in the case.

Faye was a trustee at TNC, who took $10 million from Dow.

So…what are the chances Faye’s husband will step on Dow’s face in the lawsuit?

Getting the picture?

There’s more.

TNC’s business council includes luminaries like Monsanto, Coca Cola, and of course, Dow.

Among TNC’s corporate funders: again, Dow; Coke, DuPont, Pepsi.

Could the ban-GMO movement ask for more vicious enemies?

Search the extensive TNC website and try to find one negative mention of GMOs or toxic pesticides in their “championing of the environment.”

And what about the boss at TNC?

The CEO is Mark Tercek, former managing partner at what Matt Taibbi calls the “great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money”:

Goldman Sachs.

Tercek is also a member of the Council on Foreign Relations, the vampire squid’s brother.

Tercek writes: “We would also be smart to put more focus on making GMO technology available to lower-income farmers, given the potential benefits that climate-resilient GMO crops could bring to the developing world.”

“Climate-resilient.” Sure. What’s wrong with those damn crops that keep demanding decent weather? Fix them with new genes from Dow. Can’t wait for food that doesn’t need water or topsoil.

To repeat: Faye Kurren, Judge Kurren’s wife, was a TNC trustee.

Case closed.

Find a new Judge.

This one’s tainted.


Joan Conrow said...

Great conspiracy theory, Jon, but you missed one very important point: Many major contributors to The Nature Conservancy are also donors to the Center for Food Safety. The Marisla Foundation, the personal charity of part-time Kauai resident Anne Getty Earhart, gave $60,000 to the Center for Food Safety in 2012 and $3,250,000 to The Nature Conservancy that same year. In 2012, the Goldman Sachs Charitable Gift Fund gave $150,000 to the Center for Food Safety and $2.1 million to The Nature Conservancy. So, to follow your twisted logic, should Judge Kurren be disqualified because donors to his wife's favorite charity are also benefactors of the Center for Food Safety, a litigant in the Kauai GMO lawsuit? The elephant in the salon of big philanthropy is this: damn near everybody gives to the The Nature Conservancy. According to its 2012 990 tax return, the net assets of the Nature Conservancy (TNC) at the close of 2012 totaled $6,168,924,112. TNC received "grants and contributions" of $610,766,647 in 2012.

Anonymous said...

lol. first of all, this was posted by me, arcadia, from jon's website.

second, and of utmost importance, possibly not to you, but in reality - the center for food safety, just label it, slow food, oca, nature conservancy, and almost (99%) every single rights and environmental orgs are UN NGOs. california's prop 37 was lost (expected by astute people) by center for food safety.

every aspect of life on this planet is controlled by a un ngo. that is what global dictatorship is all about, yes?

all the orgs i named, and there are tens of thousands of others, are controlled opposition. good plan if you are a sociopath. and yes, both kurrens should be sued out of hawaii due to their illegal activities. in no uncertain terms.

check your sources. check their funding. there is no such thing as a good un ngo.


there can be no meaningful mass movement when dissent is generously funded by those same corporate interests which are the target of the protest movement.