A federal judge has overturned the last anti-GMO law in Hawaii, firmly establishing state and federal preemption rights throughout the Islands.
In striking down a voter-approved moratorium on growing GM crops yesterday, Federal Judge Susan Oki Mollway determined the Maui ban “is expressly preempted by federal law.” Her ruling goes further than two court decisions that last year invalidated the Kauai and Big Island anti-GMO laws.
U.S. Magistrate Judge Barry Kurren did not address the federal preemption question last August when he overturned Kauai Ordinance 960, which attempted to regulate pesticides and GM crops. Kurren later rejected Hawaii County Ordinance 13-121, which banned all but existing GMO crops, ruling it was partially pre-empted by federal law.
In both cases, Kurren found the Hawaii Legislature clearly intended for state agencies, such as the Departments of Health and Agriculture, to oversee such matters. Mollway agreed, finding that state “statutes and regulations create a comprehensive scheme addressing the same subject matter as the Maui Ordinance.... and state law does not speak to county involvement in rulemaking, oversight, or enforcement relating to that scheme.'”
Mollway also smacked down those who were trying to use the county ordinance process to address health and environmental issues associated with GM crop cultivation:
Notwithstanding the concern that many people have expressed on both sides of these issues, and the visible (and sometimes audible) passion of members of the substantial audiences that have attended hearings in this case, those issues are not before this court on the present motions, and those who want those issues addressed must seek means other than the present order to accomplish that.
In addressing the question of federal preemption, Mollway specifically found that “Maui’s ban of GE organisms funs afoul of the [federal] Plant Protection Act and its regulations.” She wrote:
The statute prohibits the County from regulating the movement (including the release into the environment) of GE organisms in interstate commerce, if they are plant pests or noxious weeds. The Plant Protection Act includes the express statement that “all plant pests, noxious weeds, plants, plant products, articles capable of harboring plant pests or noxious weeds regulated under [the Plant Protection Act] are in or affect interstate commerce or foreign commerce.”
To determine whether preemption applies, this court must examine whether GE organisms can be considered either plant pests or noxious weeds. This court need not look beyond the language in the Ordinance itself in this regard. [T]he Ordinance inherently considers GE organisms to be “noxious weeds” and/or “plant pests.”
Mollway cited Kurren's ruling on the Hawaii County ordinance, which found that “imposing restrictions on open air cultivation, propagation, development, and testing of GE crops and plants was preempted” by the same statute she referenced in striking down the Maui County moratorium.
Mollway's order points to possible trouble ahead for supporters of the Hawaii and Kauai county laws, who are appealing Kurren's rulings to the Ninth Circuit Court. Mollway wrote:
With respect to implied conflict preemption, the Ninth Circuit has clarified that state legislation is preempted when it is impossible to comply with both state and federal requirements, or when state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Even if preemption were not express, the Ordinance would still be preempted because it frustrates the purpose of the Plant Protection Act.
Mollway also found that the Maui moratorium exceeds authority delegated to the county by its Charter. While the moratorium imposed fines of $10,000 for a first violation, $25,000 for a second violation, and $50,000 for any subsequent violation, the Charter does not allow civil penalties to “exceed the amount of $1,000 or one (1) year’s imprisonment, or both.” The penalty provisions in the Ordinance clearly exceed the authorized amount, and have not been authorized by the Maui County Council as stated in the Maui County Charter.
Despite the moratorium's severability clause, Mollway found “this court cannot simply sever the civil fine provisions without engaging in a legislative function... and instead determines that the civil fine provisions are unenforceable.”
And since the court found the ordinance is unenforceable, it denied SHAKA's motion seeking a cross-claim against Maui County forcing it to certify the election results and implement the ordinance.
The order did not address whether the ordinance violated the commerce clause. The parties that challenged the moratorium — Robert Ito Farm, Inc., Hawaii Farm Bureau Federation, Maui County, Molokai Chamber of Commerce, Monsanto Company, Agrigenetics Inc., Concerned Citizens of Molokai and Maui, Friendly Isle Auto Parts & Supplies, Inc., New Horizon Enterprises, Inc. and Hikiola Cooperative — have until July 10 to decide how to proceed on that claim.
SHAKA, the Maui group that got the moratorium on the Nov. 4, 2014 ballot, has vowed to appeal and is asking the seed companies to follow the law, even though it was invalidated by the court.
In the final paragraph of her order, Mollway again acknowledged the public controversy surrounding the GM crop debate:
The court stresses again, so that no lay party has any misapprehension on this point, that it is ruling purely on legal grounds. No portion of this ruling says anything about whether GE organisms are good or bad or about whether the court thinks the substance of the Ordinance would be beneficial to the County.
Predicable, they have achieved what was politically impossible, pre emption. Wonder which side these guys are really on, cause they seemed to have benefitted the seed companies.
What is it about the movement that attracts the realtors, could it be the land they can sell and develop once it is impossible to farm in the islands?
"But Kagawa clarified that, “Everybody is local if they feel that Kauai is their home.”
you'll like this one, ms. joan. dylan hooser posted that a group went to maui to protest in front of the monsanto office. A picture illustrated that they were there at 4:30am and monsanto security was in force. waste time and laughable. these guys don't get.
This comment is in regards to the alleged attacks at Hanalei. Wondered what kind of school it is and found it is the Headwaters Outdoor school and the teacher who wrote todays GI letter is the cook. Found this review
A few years ago, my son was so excited to attend the boys rites of passage camp, but when I picked him up at the end of camp he seemed upset, unhappy, and troubled. Recently my friend mentioned she was considering the camp for her son, and so I started talking more with him about his experiences. The conditions of the camp are quite primitive, with kids told to drink out of the stream, sleep on ant and spider infested dirt floors with unswept, dusty bark teepees. The kitchen was outdoor and makeshift, without proper running water. But what was most difficult to hear was that my son said it felt like a cult...that the leader was extremely full of himself, and that he shamed the boys into activities they were not comfortable with. At this supposedly wifi free camp, the counselors were repeatedly focused on their cell phones while overseeing the boys as they were tasked with cleaning the leader's home grounds. He described a culture of manipulation and intimidation. I could go on, but suffice to say I would not recommend this camp, as it is not what it appears to be in the marketing, and has left an indelibly negative mark on my son's pathway to teenage hood.
"But Kagawa clarified that, “Everybody is local if they feel that Kauai is their home.”
Spoken like a true politician trying to back peddle once his comments about illegal TVR Properties returning to the locals hit the airwaves-
“Once we crack down on some of these illegal ones, they’ll have to decide whether to sell it back, and our hope on the council is that some of our local families may be able to repurchase some of these properties and get it back into the hands of some locals,” Kagawa said in the interview that aired June 23.
Sorry Ross, you showed your true colors in that KITV interview. Unfortunately, this is America and there can be no discrimination based on race, color, creed, ancestry, national origin, sex, age or sexual orientation.
Furthermore, let's get real. Property values have risen so drastically on Kauai, that it's unlikely that a "local family" or even a long time resident haole will ever be able to come up with the money for the down payment and then pay the astronomical monthly mortgage it will require to own one of these properties.
Maybe, instead of getting all worked up about everything we don't agree on, we could come together and take up the issue of creating affordable housing on Kauai. Perhaps one of these billionaire newcomers could commit to developing liveable, affordable housing communities for the people of Kauai. Mixed housing for singles, couples, people who are willing to live with roommates, traditional families and the elderly. These villages,spread around the island,could house up to a thousand people of diverse backgrounds. They would require minimum down payment and mortgages would be capped at an average of one quarter of take home pay. There would pride in ownership and the opportunity to come together and recognize our similarities. Imagine an entire generation of young children being raised to not only practice tolerance, but to live it.
The anti-GMO crowd loses big! Three strikes and you're out!
"Everybody is local if they feel that Kauai is their home.” Is an excellent statement as defining local by Kagawa. There is no racist remark here, as you claim. The comment is referencing living on Kauai vs investors who skyrocket the realestate price and defy the law in the process. I would venture to guess that you are an illegal vacation rental owner. So quit the race baiting. We bought that for the last 40 years but it doesn't work today. Clean up your back yard before commenting on others.
Dont see anything wrong or "politically incorrect"with anything Ross said, that has not been said before: if the illegal TVRs are found to be truly illegal, AND the current owners decide that it is no longer in their economic interest to continue to own the property,then MAYBE the properties can be available for current local residents to purchase, and MAYBE, since the TVR misrepresentation is no longer there to induce an off island sale for the purposes of investment, THEN perhaps the sale price MIGHT be within reach of those who Yukimura is so sure"...most people here will not be able to afford those homes,”. Why are some of Ross' statements considered "prejudiced" and Yukimuri's is not?
The county made a huge mistake when it previously grandfathered in illegal operations, as Ross said in the interview.
And Hooser, in his usual duplicitous fashion, has the nerve to wish Ross would "...choose his words more carefully." Wow! It's bizzaro world deja vu, all over again!
Joan, the judge, and everyone else forgets that these judicial opinions are the opinions of an illegal occupying colonialist power, so take no joy in the opinions of criminals imposing their laws in Hawaii.
Perhaps Ross should have just said "bite me." Would that address Gary's sensitivities?
GARY told Ross to choose his words more carefully? Lol! GARY is so condescending! Ross If your reading this please do not worry. You make sense and people like you. Tell that lying, unethical hypocrite GARY in his own words to "bite me".
Sorry, that's not me. We are a family of mainland transplants who first arrived in the 70's and bought our place for under 50k, when prices were still within reach. I'm tired of being looked upon as a fresh off the boat haole. I think that what has happened in Haena is appalling. I'm just being realistic. What would a house, even in the ghetto, go for these days?
11:30 said "The county made a huge mistake when it previously grandfathered in illegal operations, as Ross said in the interview."
I guess you weren't here during the lengthy deliberations made and legal advice received by the Council as it considered the TVR bill in 2008. In a rare avoidance taking an action over which it may be sued, the County Council grandfathered in those TVR's which had up to then been paying their taxes and whose structures were compliant with building codes. You probably don't know that the existing County laws up to 2008 regarding transient rentals only addressed MULTI-UNIT STRUCTURES and NOT single family homes. Comprende? So, to all of a sudden make a heretofore entirely legal enterprise illegal would have been not only challenged in Court but would have failed at considerable cost to the County...i.e. us taxpayers. The only TVR's which up to that point required a permit to operate were solely those on State-regulated agricultural lands as opposed to County-regulated urban lands. So, the County Council did what they had to do, albeit years too late, to begin limiting the growth of TVR's outside of designated visitor areas. Please read this over and over until it sinks in!
Deaths from malnourishment in 2014: 3.1 million. Deaths from GMO food in the last 20 years: 0.
Lives saved by GMO crops: Estmated, 1billion.
Sorry 11:43 AM but Hawaii is a conquered nation much like how the Normans conquered England in 1066, only without the violence and opposition. Hawaii's situation was more like a dear in the headlights. And didn't those Hawaii royals love dressing up and spending money like the European royalty? They even gave up their religion and kapu practices to be more European. About the only time The royals ever thought of their subjects was in the 1848 Mahele which allowed them to continue gathering their food in lands given to the King's ali'i buddies. Nice of them. Of course, with the Kuleana Act of 1850 they allowed the kanaka maole to petition to get title to their kuleana if they even knew about it or understood what they needed to do. The Hawaiians of today have their own beloved leaders to blame for the loss of their nation.
Wondering if GMO made a remarkable drug that would cure them, who would like use it to save their life?
When people speak in public they risk exposing their true selves.
"The Hawaiians of today have their own beloved leaders to blame for the loss of their nation."
Fascinating how, century in and century out, it's always so simple, so black-and-white. Hawaiians, Native Americans, Africans, Indians... it's always their fault that they lost: they're always too heathenish, too distracted by infighting, too backward, too greedy for power, too fill-in-the-blank (multiple choice, pick as many as you wish).
And people say colonialism is dead.
12:29, your history on the TVR issue is just that. It was proven by the planning department that in fact most of the permits that were issued did not meet the criteria to be grandfathered in. After Bynam's law allowed no inspections and gutted the previous version, it was a free for all. One good lawyer who used to be a county attorney office lawyer con-vinced the council of his theories.
So many other laws were broke in the process, but since they favored the property owners, the residents were made second class citizens in the residential areas with unequal rights.
It wasn't the planning dept that showed people didn't qualify for the permits. It was the Abuse Chronicles.
anyway you look at it, residents got screwed by the TVR people backed by the then council. thankfully, today's council is willing to recognize past mistakes and has had the will to do something about it. Residents are putting aside their shyness and are beginning to speak. Meanwhile, Ross jest put the illegals on notice. Lookout, they be comin after you, shortly.
spears vs. bullets bullets win over spears. what would you do if you had a gun pointed at you knowing what the bullet is much faster than you can possibly run. Our Queen was in this predicament.
Ross said what a huge majority of the locals on Kauai feel. All you self-entitled B&B and TVR owners operating outside the VDA "Shame on all of you." What you no can accept locals in you life? Rent your house or room to a local family for a nice cheap rent and work a real damn job. The hotels are empty. Why you stealing their business? You entitled? Move back to where you all came from!
12:43, Your version of history has no basis in fact. None. Yes the royals had some pomp. That was to show the world that Hawaii was a civilized nation. And it largely worked, with Hawaii recognized as such by all the major powers of the time. As for the discarding of the old religion, there was already a great deal of social pressure. The queens and commoners hated the kapu system brought in by the Tahitians in the 1500s. The introduction of human sacrifice etc. was offensive to many and caused undercurrents of social unrest. The arrival of the missionaries with a more peaceful philosophy was fortuitous. I suggest you read the pre1500 legends and compare the society to post 1500. The difference is stark.
The royalty cared a great deal about there people. They insisted they be able to read. Newspapers were popular. They did all they could, perhaps much more than anywhere else. To endow their people. Kamehameha Schools, Queens Hospital, Kapiolani Hospital, Liliokalani Trust, Bishop Museum, Kapiolani Park and Trust, Lahainaluna, and much more. From a royalty with no money to speak. Great deeds. Do not belittle these people. They even did not stop when annexed. Prince Kuhio got the Hawaiian Homes Act passed in Congress.They were weak against the mighty nations then about to start a world war, but they did what they could in the storm.
Keep talking and grumbling all you Steve Martins and other TVR abusers, you will all bury yourselves, Locals unite, protest at the planning commissions, No TVRs or B&Bs should be allowed outside of the VDA, Forever. Also, lets get Planning and Council to reduce the length of time for the existing permits. There must be state or county law to do this. Locals unite, the war is here. Lets fight these arrogant bastards.
all u b&b and illegal tvr owners outside the VDA that are doubting that locals couldn't purchase your damn home when you're put out business. That is racist! You guys are so disgusting. Look at Pikake, yeah right across Costco, local families, mansions. We can buy you damn mansions too. We might have to wait a little while for your overpriced house to sit on the market but we can do it. The arrogance is sickening.
This is like an imaginary debate. War? No one is doing anything except talking anonymous trash on blogs.
Has ONE TVR that got a cease and desist been sold to anyone - local or not - because of being shut down? No.
Have TWO TVRs been criminally prosecuted? No.
Are there THREE B&B's with permits? No.
Is there any evidence that the price of housing is lower now that TVR and B&B are illegal? No.
Some people at Planning and in Council will conveniently blame the TVR / B&B for the rising of property values, but it is the Planning Dep't and the County that created the housing shortage.
Yes they created the housing shortage by not stopping the conversionof residences to mini hotels.
We just don't want tourists renting in our neighborhoods wtf
wtf can't you understand 9:31, visitors should stay in the VDA and everyone there is paid to smile, serve and be nice. When houses rent for 1400 a night in a residential neighborhood, the tourists feel entitled to party up and with no management on site, they ruin life for the residents. Not to mention it is state law .
claps to the 3 last posts. Its all the stuff you said, plus the thing that burns my butt the most. these guys come to our island, buy property, obviously understand zoning , but purposely still go ahead and operate TVAs outside the VDA, thumbing their noses to the rest of us. everyone of these people were illegal until the council grandfathered hundreds of these crooks while in the same breath said, "NO MORE". yet, there are more illegal operations outside the VDA than grandfathered ones. Any of you guys understand the word, STOP? how would i describe these creeps? the other guy got away with it so can I, no shame, no class, selfish, self serving, neighbors? who cares, entitled, crybabies, liars, complainers, cheaters, money grubbers, zoning whats that?, are just some.
as these guys become established and irritated by stuff going on around them, we see an upswing in complaints and law suits about barking pets, smoke, dust, noise, neighbors, roosters, GMO, inter island ferries, dairies, anything and everything upsetting to the entitled. good for hawaii? good for aloha? nope! check out the picture of the anti smoke meeting on Maui, posted here. if you doubt what is happening.
who benefits? realtors, developers and attorneys rubbing their hands in glee.
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