Wednesday, May 13, 2015

Musings: Biting the Dust

I feel sorry for the residents of Waimea who were plaintiffs in the lawsuit against DuPont-Pioneer.

Because what they got — money — apparently isn't what they wanted. The Garden Island reports Susan Arquette as saying:

The winning part is great, but they’ve got to change their practices. Otherwise, we won, but for what?

All we wanted out of this is for them to have ears. It is not the money. That is not why we did this. If you lived here, you would know what we’re talking about. It’s about people’s health.

So if what they wanted was for DuPont-Pioneer to change its practices, and pick up the phone when they call, why didn't they seek that specific relief? And if they wanted a definitive answer about health, why did they file a nuisance claim?

Could it be they were suckered by the attorneys — Kyle Smith, fresh from Las Vegas, and Gerard Jervis, not so fresh from the Bishop Estate suicide scandal — who were brought in by the anti-GMO groups looking for a way to ding the seed companies?

A 2013 Salon article riddled with the kind of bullshit — “growing cancer cluster,” “chemical oversprays twice closing Waimea Canyon Middle School” — that the anti-GMO movement feeds to gullible mainland writers includes this reference to the lawsuit:

In 2011 they retained Gerard Jervis, 64, a pioneering mass tort attorney in Honolulu, who recruited Kyle Smith, 37, an up-and-coming litigator from Las Vegas to join him. Before long Smith had moved his family to Honolulu to work on the case full-time.

So Jervis and Smith are going to split the usual 33 percent commission from the $507,000 award, which comes to about $150,000, or $75,000 each, and that's been enough to support Kyle and his family in Kailua for the past few years?

Something's just not adding up. Like who really bankrolled this litigation?

And if DuPont-Pioneer changed its practices of its own accord — even Susan Arquette says it's “way better,” except on the windiest days — and the health issue remains untouched, what really was the purpose of this lawsuit and its very limited verdict?

I mean, other than an opportunity for a certain politician and his red-shirted gang to trash talk the seed companies.

People are still so ignorant, like the reader who left this comment on the "Dusty and Dusted" post:

When did sugar plow/spray/water & fertilize a field three times after harvest? The major point here is that they are not typical farm operations sanctioned by GAAMP. There is far more dust the there ever was with sugar because the fields are bare. Just look with your own eyes and drive down to Mana on a windy day; the easiest place to watch. If there is a wind advisory they still plow. Sugar they planted the whole field until harvest.

I checked with a farmer who knows how sugar was grown on Kauai and got this:

My observation would be that sugar production created a lot more air pollution than seed production. While it's true that cane is a two year crop, the total area planted and the amount of uncovered soil at any given time greatly exceeded what is happening now. Also cane was burned along with the plastic drip lines.

The [seed companies'] plow/water/fertilize practice has to do with making sure that no volunteer seeds germinate before the next crop is planted so they get the left over seed in the ground to germinate by doing that. But again, on a much smaller scale than the old days. They could switch over to no-till which would involve more pesticide use.

Meanwhile, the argument brought forth in the Waimea litigation is somewhat moot, because the seed companies now plant cover crops and suppress dust with windbreaks, etc. That's why the jurors only found that Pioneer was not using generally accepted agricultural management practices for a very specific time period — Dec. 13, 2009 to Dec. 31, 2011.

There's also some irony in anti-GMO groups, which persistently preach the virtue of small farms, pursuing this sort of litigation. Large companies have the resources to suppress dust. Small farmers don't.

The multinational seed companies aren't going to fall because of dust nuisance suits. But the little guys with intolerant neighbors — or TVRs — in the ag district just might.


Anonymous said...

It is only about the money. Always has been, always will be.
Embarrassing. Shameful.
Creative lawyers get a win.
Pioneer should appeal.

Anonymous said...

Joan is right

Farmers/ranchers better wake up. You gotta TVR/BnB downwind from U, better lookout. U next.

Anonymous said...

This is good piece Joan. Very surprised that only 1 comment so far. It's probably because this article nails every point, so it's hard to debate. The seed industry is just one part of agriculture. This case has set a precedence whereby, any farmer will be fearful of litigation because of dirt nuisances. The ultimate goal in this instance is to get rid of Pioneer, because of a fear of "possibly" getting sick from pesticide exposure. I'm sorry, but many of us get sick from vog, pollen, bacteria, mold and viruses, but the difference is, we don't have any business or corporation to blame or sue. Gotta get real here, and just appreciate living and live as healthy as we can by our own choices. The unnecessary fear mongering, pitting one neighbor against another, causing vicious comments that hurt relationships and creating a feeling of helplessness, must stop. If the seed industry or any other ag industry, does anything that will affect people's health and safety, government agencies, be it Federal, State or County, will step in and remediate the problem according to the laws in place. And, don't criticize these agencies, because who else will watch over us? Certainly, not any corporate agency.

Anonymous said...

Gary Hooser spreading more propoganda in the Star Advertiser editorial section today. The guy has no shame. And we keep letting him get away with it. Other than Joan keeping him in check he seems to have the podium all to himself.

Anonymous said...

This is why everyone should support the "right to farm" bill. It will give some relief to the farmers. Long ago we were somehow tied to the plantations. We dared not go against the plantations because of dads, moms, uncles and aunties were connected to the plantation that gave them jobs. Same kind dirt. Wash your feet before you go in the house.

Watchdog said...

I'm sorry to have to write this, but I'm afraid that after a long ride behind the motorboat of industrial ag corporate speak, and a short ramp on a trip to India, Joan, you have now jumped the shark of credibility.

I'm retaking my name of watchdog that I used so long ago in these comments to argue with the so-called gadfly, but now I must question our host.

I will grant that you probably know more about this case than I do, but that doesn't come through in this article. Instead, I still see a lot of assumptions on your part, and not really fair-minded ones. I also see a lot of strawmen being held out as realistic goals.

For example: who files a lawsuit seeking someone to return their calls? Everyone knows corporations only listen to money, or the threat of losing money. And do you know if the plaintiffs tried to get satisfaction by picking up he phone before the lawsuit? You seem to imply they wouldn't even think of that, yet offer no proof that the lawsuit was not a last resort. And then you make it sound like the corps changed their practices out of their own goodwill, totally unrelated to any lawsuit that might have been influencing them. Riiiight.

I don't know the circumstances of this lawsuit, but in spite how you're trying to present it, I see a pretty standard application of justice. Megacorp answers to no one except shareholders, bends local laws to its benefit, get hit with class action and sort of falls in line and pays out a few dollars, small recompense for a few people that have their otherwise peaceful lives upended.

Yes, there was outside influence, outside money (possibly, you offer no proof, just lots of innuendo), outside interest, and everything unfolds inside the larger kaleidoscope of issues affecting our lives locally and globally, privately and publicly. But you always seem to hammer on just this one side of the issue, no matter how tenuous your evidence (as in this article).

I get it that you deplore the lack of civility, the outside influences, the amateurishness and naïvety of this generation of activists. I happen to deplore them as well, and I am grateful that you have raised them as significant issues. I also get that mega-corps have a role to play in this world and are not evil by default. But I think you have lost sight of where you are going.

Joan Conrow said...

I understand you're trying to be clever, "Watchdog," but your first paragraph is quite presumptuous about my activities, and also insulting.

And really, who are you — under cover of anonymity no less — to take on and off the mantle of "watchdog?" Especially when you don't disclose your own bias in favor of Bill 2491 and all it entails.

Yes, the people who sued did pick up the phone for years and they tried to get relief. Yes, their lawsuit was a last result, and it and even Bill 2491 had some influence on the companies changing their practices. But still, they did it voluntarily, not under court order.

I also never suggested the residents file suit to get someone to return their calls. But their request for relief could have been for company-supported hotline, where their complaints would be documented and responded to, under court order. Or disclosure. Another could have been for specific changes in Pioneer's farming practices -- no till on certain wind speed days, more dust control, etc. It seems such pursuits would have pleased Ms. Arquette, and presumably others. But they weren't specified in the relief sought.

My point was the lawsuit didn't get the plaintiffs any real time relief. It was limited to conditions that occurred for less than two years, more than four years ago. So all they could get was money for their damages, when clearly plaintiffs expected more: less dust, answers to their health concerns, responsiveness from Pioneer, different farming practices.

I happen to think it's tragic that residents were led to believe they would/could get more than they did. And I think it's legit to question who was served by misleading them.

I don't know where you think I'm going, but I see my way quite clearly. My interest has always been to support the perpetuation of agriculture in Hawaii, and Kauai, and shine a light on deliberate and/or unintended actions that have significant consequences for its future.

Because the pattern has always been thus: when ag disappears it is replaced by development, typically for tourists and the wealthy.

Anonymous said...


Why don't you come up with ideas of your own on how the system should work. Do your research, we know you're good at it. We don't need your nonconstructive criticisms. If you have a problem list it and challenge it and come up with a remedy. Smoke blowers and Monday morning quarterbacks are a dime a dozen.

Anonymous said...

I'm hearing the deal was that attorneys get 60 percent of this verdict, and the plaintiffs don't get paid until the very expensive expert witnesses also get their cut. If that's true, there will be very, very little left for the little folks. The message: beware lawyers bearing gifts.
Now, all farmers are at risk, communities get squat, and there's a new money train for attorneys.
The Legislature needs to step up and stop this craziness.

Anonymous said...

To promote agriculture. Waive the Jones act. Allow export markets to develop. Apply basic economic sense. Get the government out of the way.

watchdog said...

Clever and snark get attention for your articles, don't they? Insulting? Yes, you do that too. In this article you insinuated that the plaintiffs were too dumb to file a lawsuit for what they really wanted. You also suggested they were "suckered" by attorneys to file something they maybe didn't intend or want.

By all measures I can see, the lawsuit worked and justice was served. The dust has been mitigated, the companies got a slap on the wrist, and the plaintiffs and attorneys got some money, nothing excessive, for their trouble.

I really liked the 3rd paragraph of your reply comment. How come none of that straightforward talk made it into your original article? Instead everything was twisted (and badly--as in excessively and as in poorly) to make yet again your point about outside influences and excessive zeal against certain corps. You know, you convinced me long ago with some good examples and reasoning that such things were happening. Now your examples and reasoning are strained to the limit.

A: "So if what they wanted was for DuPont-Pioneer to change its practices, and pick up the phone when they call, why didn't they seek that specific relief?"

B: "I also never suggested the residents file suit to get someone to return their calls."

That wasn't even that hard to find, was it? But since you're defending your rhetoric, let's look at some more:

- How does "chemical oversprays twice closing Waimea school" count as "bullshit"? Is it false and how? I recall it happening once so it seems plausible--or maybe it really was the stinkweed just like the chemical corps said it was. Because I've noticed you like to report a lot of things the corps say, and always unquestioningly--I guess because corps would never have any reason to lie. You know, I would love it if the kids got symptoms from stinkweed and mass hysteria (which is a fascinating human phenomenon), but I haven't seen conclusive proof one way or the other about what happened at the school. So unless I missed such proof somewhere on your blog, I really wonder how you can sling "bullshit" around so easily (see what I did there).

- You quote a plaintiff who believes that the 3 time plowing of GMO fields is a practice that creates more dust than the sugar cane cycle did. You then quote a farmer who says, and I paraphrase: there was more uncovered land with sugar (um, it's not the uncoveredness at issue, it's the plowing) and GMO crops need 3-time plowing because reasons (thus confirming not rebutting the plaintiff's claim). However, the farmer is sure that in the old days, something was on a bigger scale (what, the dust? how? because it certainly wasn't the plowing).

- And if uncovered fields are really the issue, I recall seeing the G&R fields in production, and I recently saw sugar cane in production on Maui, and there was a lot less open fields that what I see on the Mānā plain today.

- All in all, your anonymous farmer really seems to know a lot about the details of the GMO field rotation and preparation schedule. I'm not saying he's a shill (oops I just did), but you didn't really reassure us that you're not getting your talking points from people in the GMO industry (oops again). And if you don't like these kinds of "insults" (as I assume you wouldn't) why do you use the same kind in your writing to attack the people you deem worthy of attack?

- Your anonymous farmer ends with a nice threat: either get 3-time plowing (amount of dust not specified) or get spray from chemicals. That doesn't speak to well to the modern ag whose detractors you are castigating repeatedly.

Anonymous said...

watchdog continued….

- The StarAdvertiser article says they filed suit in 2011, and you say the judgement found the dust nuisance stopped on Dec 31, 2011, yet you maintain that the corps "voluntarily" started mitigation measures. The word I would use is "preëmptively" (can you tell I once read the New Yorker?), which really paints a different picture of the ag corps' priorities and motivations, doesn't it?

- You say that small farmers don't have the "resources to suppress dust", yet we (as in your arguments per my analysis) haven't disproven 3-times plowing and it's creation of dust, and presumably the small farmers aren't doing that. We also learned that the corps preëmptively suppressed dust with cover crops and windbreaks. Are you saying those common practices are beyond the reach of regular farmers (because I see them all the time at the Moloa‘a organic farms).

- You conclude with "The multinational seed companies aren't going to fall because of dust nuisance suits." But you haven't convinced me or any astute reader that the goal of this lawsuit was to fell the multinational seed companies (what I've been calling the corps, as in corporations). There has clearly been some hope and spin from the people who do want such a fall. But in your seemingly relentless attempt to criticize those people, you are really maligning the plaintiffs who seem to have had a legitimate case (if after all, the seed companies managed to reduce their dust after the suit started), pursued it for the recognition of the problem as much as the preëmpted solution, and won it on merit. In fact, you yourself quoted the plaintiffs explicitly claiming they pursued it for the recognition of the health issue and changes in ag practice. If you believe the GMO spokespeople at face value, why can't you extend the same courtesy to these people, or at least back up any accusations to the contrary with facts?

Because if you had showed how the plaintiffs were connected to the little fisties movement, or whose money was behind the attorneys, or how the suit was agriculturally frivolous, you would've had a convincing article. I remain open to being convinced in such a way. But the use of insinuation and guilt by association without such facts rather weakens your credibility instead. And given I generally defend some of your other positions, I'd hate to see that happen.

Anonymous said...

watchdog continued:

I find this sad, because your final conclusion about real farmers being threatened with more lawsuits is a distinct possibility. Even though we have established that they probably don't do the 3-times plowing that is required in GMO test fields, I can see it being a legitimate concern as there is more and more development on Kauai's ag lands and periphery.

Because someone accused me of not offering some solutions, and though I am not a farmer, I humbly (and a bit naïvely) suggest the following:

- Recognize dust is a real issue, but one that can be easily managed to acceptable levels.

- Plant cover crops that can perhaps be valuable (hay or alfalfa?).

- Plant windbreak hedges against the prevailing winds.

- Delay plowing if possible on wind advisory days.

- Advocate for state or federal ag grants or programs that study and encourage dust suppression practices (or maybe just do a literature search, because I'm sure this has been studied before).

- Advocate for ag subsidies or 0% loans for dust suppression improvements for small farmers.

- Pass a state law explicitly exempting farmers from dust nuisance lawsuits as long as they've taken some dust suppression measures (these or others found in the research).

What surprises me is that Joan has not been held to this propose-alternatives standard, nor adopted it herself.

As for who am I to be the watchdog, I am nobody. I just picked a name that's easy to attack to see if others would attack it. I am your conscience who says that if you are really trying to curb the excess and shrillness and irrationality of something with writing like this article, you have been gazing too long into the abyss.

Joan Conrow said...

Watchdog –
Snark only works if it's clever and, like sarcasm, rooted in truth. Your comment was neither, just another tired shill smear, like the one you leveled against my farmer friend. Because the only people who know anything about the industry, or can communicate with it civilly, are paid shills, right?

Just to set that record straight, my friend doesn't even like biotech. But as someone active in the farming community, he felt he should understand the seed companies, so he spent time at all their facilities.

And no, he wasn't leveling a threat, just stating the reality of modern ag — including organic farming, which tends to use tilling rather than pesticides to kill weeds. Both tilling and “uncoveredness” are significant factors in creating dust, as is mowing and driving on dirt roads. All of that is done by small farmers. Truly, you haven't seen any red dust billowing at Moloaa? Try go on a windy day.

I think the problem lies in your dogged assertion, which perhaps is blinding you to any other point of view: “By all measures I can see, the lawsuit worked and justice was served.” Except it didn't. Ms Arquette is still unhappy and wondering what the point of the suit was.

And no, I never insinuated nor implied the plaintiffs were "too dumb" to file the lawsuit they wanted, or that their suit wasn't warranted. That's your misinterpretation. Just as I never said they should file a lawsuit specifically to get someone to answer their calls. What I said, twice, was that was a specific relief that could have been requested in this nuisance suit. I don't expect Waimea residents, or any laypersons, to understand the legal system. But because it's esoteric, it's easy for folks to get suckered into litigation that doesn't really resolve their concerns.

It suits your purpose in portraying the “chem corps” as devious and evil to claim they “preemptively” employed mitigation. Since I'm not a chem corps shill, I'm really not privy to their motivations. But none of that changes the fact that it was done “voluntarily” as opposed to by court order. And that's been one of my points about the whole Bill 2491 fiasco. Much of what the 2491 supporters (and you still haven't acknowledged your bias from being among their ranks) wanted from the “chem corps” — buffer zones, disclosure, pre-notification of spraying — has been done voluntarily/pre-emptively, even though the law was struck down. So is the law needed?

As for dust mitigation measures, including some that you so helpfully suggested, being beyond the reach of small farmers, yes, indeed, some are. You apparently have never planted or maintained a windbreak, or been sued by your neighbors to remove it, as happened to John Wooten at Aliomanu.

And as some farmers would say, why should they spend any of their precious time and money suppressing dust to please their non-farming neighbors when they are engaging in agriculture in the agricultural district?

So to your list I will add this one: keep non-farming uses and non-farmers out of the ag district.

Joan Conrow said...


I have indeed written several times about the oft-repeated claim that “chemical oversprays” closed Waimea schools. A report from Dept. of Ag confirmed that since 2006, not a single school evacuation was caused by agricultural pesticides. Instead, homeowners misapplying pesticides and a turf company were the culprits. That may not be the proof you're seeking, since it doesn't have the Babes Against Biotech stamp of approval, but it's the best I've found, from people who are directly charged with investigating these things.

You make a lot of assumptions to reinforce your shill accusation, like I report “unquestioningly” on the "chem corps" and take their comments at face value. How you do know? I've found that corporations, like regular citizens, attorneys, politicians and even watchdogs, do have reason to lie. But that doesn't mean they don't also sometimes tell the truth. I try to ferret it out the best I can.

I'm sorry you found this piece weak. When I'm writing some 200 posts a year, they can't all be grand slams. I do plan to write more about this issue, so perhaps you still will be convinced. Or maybe you won't. Despite your claim of being open, it seems your mind is made up.

It puzzles me when people model bad behavior to get me to change mine. It reminds me of a Facebook exchange with Dylan Hooser, who called me names while criticizing me for calling people names….

Oh, and please don't delude yourself into believing you're my conscience, which is hyperactive and needs no outside help. But since you fancy yourself some sort of moral crusader, why not use your real name? That way other readers can assess the credibility of someone who is intent on maligning mine.

Anonymous said...

Joan: Check your facts. John Wooten was never sued by his neighbors at Aliomanu to remove his windbreak.

Joan Conrow said...

I stand corrected, 5:56.

John was threatened with a lawsuit by his non-farming neighbors if he didn't remove his windbreak, causing him great emotional anguish. He removed it pre-emptively/voluntarily at considerable expense.

Anonymous said...

John Wooten was threatened with fines not a lawsuit. The fines were never issued. He currently has a 25 to 35 foot tall windbreak.

Joan Conrow said...

He was threatened with fines and a lawsuit to collect them. And while he was "allowed" to keep some of his windbreaks, he had to remove others that were affecting the ocean views of the "gentleman farmers."

Anonymous said...

His windbreaks surround his entire property. The only time he had to remove windbreaks and replant on his own property was when he encroached on a pedestrian path.

Joan Conrow said...

That's the claim made by the non-farmers, of which it appears you are one. John has a different story, and I saw his windbreaks. They weren't keeping anyone from walking.

Fact is, John got so discouraged and dispirited by this petty crap that he moved the bulk of his operations to Moloaa, even though he was farming in Aliomanu — an ag subdivision -- before all the non-farming complainers moved in.

Anonymous said...

Joann, please get your facts correct regarding the suit! This article makes the plaintiffs appear unaware of things they are very aware of. Please don't knock the attorneys----they are good people who had their clients best interest at heart. . . . . you probably don't believe this, but you have not walked in our slippers and don't know what went on for the past 5 years with the work they put out. And, people change and walk different paths in their lifetimes----don't knock them for their pasts! Please don't associate Hooser's name with the lawsuit. Waimea wasn't about gmos----it was about dust and Pioneer's absolute disregard for Waimea for the past 17 years. Watchdog is much appreciated by me!

Anonymous said...

Another example of a clash between a real farmer and his gentlemen farmer neighbors; which in some cases include TVRs or BnBs. Any question about who loses?
You, Mr. Farmer/Rancher could be next. Support the move to control vacation rentals, for your own good.

Where the hell is the Farm Bureau ?

Anonymous said...

7:48. Hooser associated himself with the lawsuit milking it for all its worth.

Anonymous said...

@7:46 and11:53 am

Yep Hooser jumped in with both feet claiming the victory with the Waimea community. When it was just dust related.

We all sympethise with the Waimea residents that have had to deal with the dust for the last 100 years. In Moloaa during the 70's when they first farmed papaya the farmers all planted win breaks around their fields to control the wind and dust that was blowing onto the highway. I would think a plan for a vegitation barrier along the perimiter would mitigate some of the dust problems so agg and residences can co-exist in the same town.

Anonymous said...

but then neighbors who wanna view, sue.

Anonymous said...

@ 12:06pm

A commercial windbreak and a vegitation barrier are two different animals. I don't think you can be sued for planting a vegitation barrier on your property or leased property.

Anonymous said...

try ask the guy in aliomanu

Anonymous said...

Joan, who are you to suppose what the residents were "promised" from the lawsuit? Most of my understanding prior to any media coverage was direct from the residents that explained this lawsuit could only discuss dust and not pesticides. These people are educated and informed and don't need your pitty; they need your support.

If the seed/chemical companies were good neighbors, it would not have taken over a decade and thousands protesting pesticide use on Rice Street to get a "voluntary" after the fact disclosure program. Why cant they disclose pesticide use before applications? 45 days later doesn't do much good to prevent exposure or treat anyone suffering from an exposure.

Joan Conrow said...

And who are you? I mean, other than an anonymous non-plaintiff? I never did suppose what the residents were "promised" from the suit. I only noted that at least one was not satisfied, despite winning.

FYI,, the seed companies do disclose pesticide use to nearby residents prior to applications. The only exception is Pioneer, which was forbidden to contact the plaintiffs in a lawsuit.

Also, let's not rewrite history. There weren't thousands protesting pesticide use on Rice Street. They were perhaps 2,000 and they were protesting GMOs.

Anonymous said...

Joan, Pioneer does send email notices to plaintiffs regarding the days, times they will be spraying and doing plowing and planting work. However, they have never ever given information about the pesticides they use. They were in contact with the plaintiffs during the lawsuit! What do you mean when you say Pioneer was forbidden to contact the plaintiffs due to the lawsuit? Is that something that can be used against them? And yes, Waimea does need your support, not innuendos and assumptions. And to 7:21, it is very easy to debate this piece if you have been involved in the case. Also, the county and state governments DID NOT assist the people in Waimea who have contacted them about the dust problem since the year 2000.

Joan Conrow said...

8:52 -- I checked with Pioneer, and here is their response:

"We did not reach out and walk door to door or offer broad notification to the Waimea residents because of the lawsuit. A specific email was created for plaintiffs for notification for those that requested through the attorney's early on. It was a small list. The emails were weekly when we operated in the west area of our farm."

So no, it isn't something that can be "used against them." How bizarre that you've been screaming for notification, and then when they do it, you want to use it against them. What a creepy mindset.

Anonymous said...

Creepy mindset!? You alluded to my asking the question about "using it against them" when you stated that Pioneer was forbidden to contact plaintiffs in the lawsuit. I just thought, hey but they are contacting people in the lawsuit! And it shouldn't be a small list, it should be a huge list of people they should be contacting!! They contact people just because of a lawsuit!?

Joan Conrow said...

Don't try to blame your creepy mindset on me. And no, they didn't contact people just because of a lawsuit. Go back and re-read. You seem to have a reading comprehension problem. And unless you'd like to start communicating as a person with a name, this correspondence is now pau.