Musings: Citizen Scientists

As Terry Lilley's discredited report on “chromium toxicity” in Hanalei Bay makes clear, anybody with $29,000 can be a “citizen scientist.” Which raises the question, as the Kauai County Council prepares to reconsider its Environment and Public Health Impacts Study (EPHIS) resolution tomorrow: Why haven't the county or any of the anti-GMO groups done any preliminary pesticide tests?

Or if they have, why haven't the results been publicly released?

I frequently hear the KKCR Surfrider ad claiming that pesticides from the GMO fields are washing into the water and poisoning our reefs. So I'm assuming they must be basing that allegation on some sort of scientific finding. But though I regularly receive the helpful results of Surfrider's monitoring of e-coli bacteria in Kauai streams, I've never seen any reports from anybody but the state on pesticide sampling in rivers or reefs.

I'm not saying it's the job of activists to do this. But given the intensity of the claims they levied about health problems reportedly caused by GMO crops and pesticides, it seems a no-brainer that they'd run a few tests in key locales and share the results to substantiate their allegations. They can't honestly claim poverty. Hawaii Seed, the group behind GMO Free Kauai, got $228,550 from one funder in 2012, and no doubt far more than that last year. And somebody (Mike Sheehan?) is funding Lilley's tests.

The same goes for the County Council, which is now planning to plunk down $110,000 for the initial phase of an EPHIS that, under its current configuration, won't even begin commissioning any studies for at least 18 months. And who knows how long it will be before any meaningful data is presented after that?

Councilman Gary Hooser pushed for an immediate passage of his pesticide/GMO disclosure Bill 2491 (Ordinance 960) in large part because he claimed the westside was experiencing a "health emergency." So how, then, does he reconcile making people wait another two or three years for some solid data on the real risks they're facing?

Why not start with some select samplings, say the water in Waimea River and agricultural ditches, the dust in Waimea homes? Why not put up some of those drift sticks on the edges of fields that border communities to see if pesticides are wafting on the the wind?

In other words, why not collect some hard data?

I've heard Gary and other activists say no tests can be done without disclosure, as they wouldn't know what to look for. But attorneys suing Pioneer on behalf of westside residents released that company's pesticide list quite some time ago. We've also got the restricted use pesticide sales records and now the first round of voluntary RUP disclosure.

Surely the county could select some key pesticides from those lists and test for their presence and concentration in the westside environment. That would give all of us some basis for understanding the severity of the threat, the magnitude of the problem and the areas where resources should be focused.

Instead, the Council wants to spend $110,000 to hire a consultant to convene a group of scientific, environmental, economic, cultural and public health experts from our island to merely begin planning an EPHIS, which is supposed to address the following:

Undertake sustained and science-centered deliberations to identify the highest priority environmental and public health questions pertinent to the pesticides used and genetically modified crops grown by large scale commercial agricultural entities on Kauai, and in comparison to the production of other agricultural products; this may include but not be limited to Atrazine, Bifenthrin, Chlorpyrifos (Lorsban), Clothianidin, Glyphosate (Roundup), Paraquat, and '2,4-D.'”

Develop recommendations as to the highest priority questions to be asked, including, but not limited to, preferred methodologies for replicable studies, monitoring and epidemiological analysis, and standards to be used for recommended scientific studies; including the thresholds of safety or danger related to the identified pesticides.”

Oh, and don't forget the bit about “examine and report findings related to issues dealing with economic impacts, food sustainability and environmental justice.”

Again, this EPHIS is based on the assumption that the companies are releasing pesticides into the environment in quantities sufficient to endanger human and environmental health. Which may very well be true. But why not do a bit of scientific sleuthing, first, to see if that's even a solid premise? Wouldn't a few facts help to inform the scope of the EPHIS, attract more state and federal assistance?

Getting back to Lilley, he posted his alarming chromium results on the Ocean Defender Foundation Facebook page on Dec. 26, 2013:

In our first professional round of testing with Test America we found dangerous levels of Chromium in the sediment right off the bowl and in the sediment in the river. I marked it on  a pic I took from the helicopter.

I think it is best for the public to decide if these levels of Chromium are OK in Hanalei Bay. You get Chromium poisoning by absorbing it through your skin. Just do the research yourself and connect the dots!

According to Kauai state aquatic biologist Don Heacock and Dr. Roger Brewer, a senior geologist with the Department of Health's Hazard Evaluation and Emergency Response Office, Lilley and his lab analyst connected the dots incorrectly.

Not only are chromium, arsenic and other metals naturally occurring in Hawaii's sediment and soil, the chromium is tightly bound with minerals and not “bioavailable” — in other words, it's not taken up by our bodies, even if you accidentally eat it.

Lilley promised, in the Facebook post:

“If you have scientific information that these levels of Chromium are OK to swim, dive and surf in then please let me know. I will be happy to send them out to everyone.” 

But when faced with such scientific information, he still refused to accept it, as reported by The Garden Island:

Lilley said the DO [sic] is being “extremely irresponsible” and failing to address how the metals ended up on the reef in the first place.

“Even if these were natural, we have a health problem that needs to be dealt with,” he said.

No doubt some Councilmembers would agree with Lilley's "reasoning."  Never let facts get in the way of pre-conceived notions and hysteria, especially when political and personal gains are to be had.

Musings: Calling All (Free) Lawyers

Kauai County is now accepting applications from attorneys who are willing to wage a pro bono defense of its highly publicized pesticide/GMO disclosure bill.

Pioneer, Syngenta and Agrigenetics (DOW) filed a complaint in federal District Court last Friday seeking to overturn Bill 2491 (now Ordinance 960). The agrochemical companies — three of five agricultural enterprises on Kauai affected by the new law — claim it's discriminatory, pre-empted by state and federal law, irrational and a violation of the county's own charter.

As the bill was making its way through the County Council and past a mayoral veto, a number of attorneys promised a pro bono defense if the county got sued. Now it's time for them to ante up.

In a Nov. 5, 2013 guest commentary in The Garden Island, bill co-sponsor Councilman Gary Hooser wrote, “We have taken prudent steps to cover our legal bases.” He went on to claim:

Local attorney and former head of the Kauai Bar Association Teresa Tico, and nationally known attorney and head of the Center for Human Rights and Constitutional Law Peter Schey, have both agreed in writing to defend the County of Kauai pro bono should Bill 2491 be challenged in court.

In addition, Paul Achitoff of Earth Justice and George Kimbrell of The Center for Food Safety have also offered in writing their pro bono representation of community groups who would join as intervenors in defending the county position.

Achitoff was previously quoted as saying “he believes the county attorney was biased in his analysis, overestimating the strength of the seed industry’s argument. “A lot of his opinion reads as if he cut and pasted from the industry’s lawyers, rather than doing some real work and figuring out how is this case really likely to be decided in court,” Achitoff said.

I'll be curious to see how Achitoff drafts his response to the actual complaint. Assuming, of course, he is selected to work with the county attorneys he previously tried to discredit.

Though the county previously used pro bono legal services in the dispute between the Police Commission and the mayor over who has authority to discipline the chief, it's not a common occurrence. I asked county spokeswoman Beth Tokioka how the process would work:

Allow me to preface our response with an explanation of how legal services must be procured pursuant to State Procurement Law.  Legal services fall under a category of "Professional Services,"  as defined in HRS 103D-304 and Hawaii Administrative Rules Sub Chapter 7,  for which we issue an annual solicitation of firms who wish to be considered for special counsel services during the fiscal year.  This solicitation must be issued in June of any given year, and the list of firms who respond and are deemed qualified for consideration will be developed for consideration for the period of July 1-June 30 of the following year.  Should funding for special council services be approved at any time during the year, the list is reviewed and a selection committee will meet to rank firms based on the needs of the case.  The issues pertaining to cost are subject to negotiations between the Office of the County Attorney and the highest ranked law firm.  While pro bono services are rare, there is nothing in the procurement code that disallows a selected law firm or attorney  from offering pro bono legal services.

The use of pro bono attorneys for special counsel purposes is not the norm.  In the case of the Kauai Police Commission, the firm hired to provide special counsel services to the commission was selected via this process and was initially paid for its services.  Once the initial ruling came from the court, the firm offered to provide services for appeal on a pro-bono basis.  The important thing to remember in this instance is that the original procurement was NOT for pro-bono services.  The contract was amended in February 2013 to reflect the extension on a pro-bono basis.

In the case of Ordinance 960, the issue of pro bono special counsel services is clearly beyond the norm in terms of procurement.  During the course of the debate and deliberations  with regard to Act 2491, representations were made by certain law firms that defense services would be provided to the County pro bono, in the event that the County was sued.  As stated earlier, the County procures all professional services special counsel requirements (of which attorneys for special counsel are included) in June of each fiscal year for the subsequent fiscal year.    Again, this is required by statute.   A new procurement for the same services can be pursued if the department head conveys to the procurement officer that new or unmet needs have arisen that mandate a new procurement.  In the case of the anticipated special counsel needs for Ordinance 960, it was determined that the potential for pro bono legal services met the requirements  of a “new” condition, thus allowing for a subsequent competitive procurement to pursue such services.   As such, the County will be letting a formal and competitive solicitation for professional services to pursue the services of pro bono special counsel to defend the County regarding Ordinance 960.  The solicitation is being let competitively to provide the opportunity for all interested  law firms to submit resumes and letters of intent for consideration.  

Please note that in our solicitation, "pro bono" will be clearly defined as “professional work undertaken voluntarily and without payment as well as donation of all related litigation and collateral costs and expenses, including but not limited to court costs, court reporter costs, travel and per diem expenses, copying expenses, legal research expenses, communication expenses, expert fees.”

In the event that there are no qualified responses to this new solicitation, we will need to then revert to the previously solicited list of qualified firms and negotiate fees with the highest ranked firm out of a selection committee process. 

I, and many others, including the county attorney's office, have criticized serious weaknesses in the bill, which was drafted and endorsed by pro bono attorneys who deemed it “bullet proof.” So what if they were wrong in their assessment? Or what if they simply don't have the legal chops to wage a winning defense against the chem corps' team of formidable attorneys? Who will pay then?

I posed that query to Beth, and got this response (emphasis in the original):

The Plaintiffs in the case “pray that [the] Court: award Plaintiffs their reasonable attorney’s fees and costs” amongst other things. This means that the County as the Defendant would be responsible for such amounts.

Meanwhile, the Council has agreed to reconsider the resolution authorizing an Environmental and Public Health Impacts Study (EPHIS) — the mechanism that is intended to assess whether the practices of the biotech seed companies are harming people and nature.

As I've previously reported, the EPHIS is extremely wide-reaching, proposing a scope of work far beyond the $100,000 allocated for the process and the remaining one-year life span of the authorizing resolution.

Councilwoman JoAnn Yukimura expressed concerns that the Council had gone too far afield in directing a joint fact-finding group to examine and report on findings regarding “economic impacts, food sustainability and environmental justice.”

Her colleagues agreed on Wednesday to revisit the resolution, which is set for a special meeting on Jan. 22.

Musings: No Limits

Out at dawn, two sweatshirts warding off the chill, moon round as a basketball about to drop behind the clear summit of Makaleha, sun rising red over a beach washed clean of all but ruddy turnstone tracks, I turn to call Koko and see a double rainbow, reminder that joy and beauty have no limits.

Dr. Lee Evslin had a good letter to the editor yesterday about the need to limit radio frequency exposure — especially with kids — before getting into the comparative RF dangers of cell phones and smart meters, and the latter's risk relative to our reliance on fossil fuels.

It did a great job of underscoring two facts that humans like to ignore: we live in a world of risks of our own making; and our willingness to expose ourselves to those risks is determined by how much value we perceive we're getting from the risky activity.

Which is why we have people with cell phones fighting smart meters on this island, even though, as Dr. Evslin notes, “it would take you a year and a half of standing near a smart meter for 24 hours a day in order to be exposed to the same level of RF as you are on a 10-minute cellphone conversation.”

Which is why we have Moms Against Monsanto, but no Moms Against Tablets — even though the same American Academy of Pediatrics that warned against pesticide exposure in kids also says no screen time at all for babies under 2 years old, and just one or two hours per day of entertainment screen time for older kids.

Which is why we have a letter to the editor from Kapaa resident Anna Nimitee (say that name aloud and tell me if you think it's fake) complaining about the “scorched earth” policy of biotech companies operating nowhere near her, while folks working in those same fields have no problem with the pesticides.

Which is why we have people burning fossil fuels in cars and jets to protest against the feared health impacts of GMOs, even though, as Dr. Evslin noted, “Annually, there are over 34,000 deaths and 18 million hospitalizations directly related to pollution from fossil fuels.”

Which is why we have people bitching about how the government — and KIUC, with its smart meters — is invading their privacy, even as they happily post their every thought and move on Facebook, carry a smart phone with GPS tracker and work for the government..

Which is why Americans spend billions fighting terrorists, but fight single-payer health care —  even though they're 17,600 times more likely to die from heart disease than from a terrorist attack.

There's no limit, it seems, to the irrational foolishness of human beings.

Which is why I make sure to get my daily dose of nature's joy and beauty.

Kauai Biotech Discloses Restricted Pesticide Use

The first reporting of biotech pesticide use under the voluntary “Kauai Agricultural Good Neighbor Program” is now available on line at the state's data port.

Syngenta, Dow AgroSciences, BASF Plant Science and Dupont-Pioneer reported the quantity of each restricted use pesticide they used in the month of December 2013 and the total acreage to which it was applied.

For example, BASF applied 4.60 pounds of Lorsban to 5 acres, Dow applied 23.4 gallons of Paraquat-dichloride to 131.15 acres and Syngenta used 166.75 pounds of atrazine on 166.75 acres, among other things. 

The reports do not specify where the pesticides were used, or anything about GMOs, as would be required under the county's new law. It's due to take effect in August, and the companies agreed to a much more limited voluntary disclosure in the meantime.

The voluntary guidelines also set a 100-foot buffer zone between application areas and schools, medical facilities and residential properties, which is less stringent than the new county law.

Musings: Welcome Mat

Moon, one tick away from fullness, adorned a sky dotted with stars and streaked with spider web clouds when the dogs and I went walking in the welcome chill of a January pre-dawn.

Kauai County is putting out the welcome mat for pro bono attorneys who want to cash in on the publicity surrounding the biotech companies' lawsuit challenging our pesticide/GMO law. Because Lord knows the county doesn't have that kind of expertise or dough.

It'll be interesting to see who turns up. Attorneys George Kimbrell of Center for Food Safety and Paul Achitoff of Earthjustice are already making comments to the media as if they're on the job. How, exactly, will such a scenario work? Will the county's interests be properly represented by attorneys whose first loyalty is to their own nonprofits? I can see the direct mail appeals now: Fighting Goliath in Paradise. Send money. Lots and lots and lots.

And does pro bono mean they'll also pay court costs — and the other side's legal fees if they lose and the judge so orders?

In reviewing the press coverage of the lawsuit, it's as if the attorneys, activists and Councilman Gary Hooser are all reading from the same script:

"They chose to use their money and legal power to bully us in court," Hooser said. "These companies do not want our county to set a precedent that other communities are going to follow."

Come on, Gary. Your primary reason for introducing this bill was to try and set that precedent because you wanted to “do something important” and make a name for yourself.

Achitoff also chimed in:

“The chemical industry has been using bullying and misinformation all along to try to derail this law,” he said in a statement.

Yeah, that's true, but it might play better if those exact words didn't also apply to the tactics used by the movement that pushed the bill through. Amy Harmon's Jan. 5 piece in the New York Times did a good job of portraying the movement's use of that same strategy on the Big Island. Don't think, just attack anyone with a question or a different point of view while Facebooking copious quantities of hyperbole.

Meanwhile, Councilwoman JoAnn Yukimura has apparently recognized the resolution implementing an Environmental and Public Health Impacts Study (EPHIS) contains a bit too much hyperbole. She's asking the Council tomorrow to reconsider its approval. As JoAnn notes, the reso got passed late at night, and “I do not believe members understood the implications of some of the proposed amendments...”

Gee, that sounds familiar....

At any rate, JoAnn is now worried about language in the reso that directs the Joint Fact Finding Group to examine and report on findings regarding “economic impacts, food sustainability and environmental justice.” She's concerned it will “politicize the process” and possibly jeopardize the integrity of the EPHIS, while stretching the budget.

Like everything else in this over-reaching resolution won't?

Also on tomorrow's agenda are JoAnn's bills calling for licensing cats and regulating barking dogs. Since dog owners must buy a license for their pets, it's only fair to impose the same requirement on cat owners. Or better yet, forget both.  But the bill seems premature. Why not wait until the Feral Cat Task Force completes its work and makes recommendations on how to deal with the wild cats?

As for the barking dogs, no doubt some folks deserve a respite from constant yapping. But when you have the Humane Society acknowledging it made 26 visits to one Waipouli home before finally filing charges of abuse — one dog dead and others starving — it begs the question: how in hell are they going to enforce against barking?

Why not work on a more community-based solution? If one person is upset by a barking dog, surely other neighbors are, too. Let's spend our energy on strategies to help citizens resolve this issue themselves, instead of passing yet another law, and one that will be difficult if not impossible to enforce. 

Biotech Firms Challenge Chock's Appointment to Kauai County Council

As part of their complaint filed against Kauai County last Friday, the biotech seed companies are seeking to void the County Council's selection of Mason Chock to fill a vacancy on that panel.

If they are successful in voiding Chock's appointment, it would also invalidate the Council's vote to override Mayor Bernard Carvalho's veto of Bill 2419. The Council, recognizing it did not have the votes for an override, recessed and appointed Chock to complete the term of Nadine Nakamura, who resigned from the Council to work as the mayor's top aide. Chock went on to support the override.

The appointment is contested in the last of the plaintiffs' 13 claims against the county. It describes how the Council received numerous applications for the position, but kept the names secret. The Council met in closed executive session to winnow the list down to just two: Chock and KipuKai Kualii, who finished eighth in the last election.

By identifying only Kualii and Chock, “the Council deprived the public of any opportunity to know the identity of everyone on the list of applicants and, thus, the identity of the people the councilmembers chose not to put on the 'short list' for public discussion,” the complaint states. “As a result, the public was deprived of any opportunity to know whether, and to what extent, political affiliation, political favoritism, personal bias, campaign contributions (or the lack thereof), education, employment or other factors may have influenced the selection process. The applicants had no privacy interest in maintaining anonymity, or if they did, their privacy interests were outweighed by the public interest in knowing the credential and experience of the applicants who the council passed over in the members' rush to choose a replacement councilmember who would support overriding the Mayor's veto of Bill 2491.”

The complaint contends the state "Sunshine Law" (HRS 92-4 & 5) does not authorize the Council to winnow the list of applicants in secret. Under HRS 92-11, the Council's action is voidable upon proof of a violation, in any action brought within 90 days of the challenged meeting.

“This action was filed within that time period; the Council's appointment of the replacement member must be voided,” the complaint states. “All actions taken in reliance on the vote of the improperly selected replacement member — including but not limited to the override of Mayor Carvalho's veto of Bill 2491 — is likewise void.”

I went back into the Council minutes to look at how the panel chose a replacement for Derek Kawakami, who resigned in 2011 after being appointed to finish out the House term of Mina Morita, who had been named chair of the Public Utilities Commission.

In that case, the Council “circulated internally” a list of people interested in serving, according to the April 12, 2011 minutes. The list was never made public. Since the county charter does not specify a process for picking a new member, Council Chair Jay Furfaro proposed one that his colleagues approved:

First of all, nominations from the council will be taken one name at a time. All nominations must be seconded. After a nomination and a second, I will take public testimony for those who wish to speak on the person that was nominated at that time. After public testimony is taken, the council will be called back to order and we, in fact, will discuss that nomination. After the council discussion, a roll call vote will be taken on that nomination. If a nomination receives four (4) votes, it will be considered that a selection and consideration had been made. If four (4) votes are not received, the council will then move to a second nomination from its members and then we would repeat that sequence.

Kualii, who had finished eighth in the previous election, was the first to be nominated and was unanimously approved.

But when it came to filling Nakamura's seat, the Council took a different approach, which Furfaro said he had cleared through the Office of Information Practices. “Again, by OIP, we do not disclose who the applicants are of the eighteen (18) at this point,” Furfaro told the Council before going into executive session on Nov. 15, 2013. “We are only required to disclose those that are nominated.”

Prior to that meeting, Councilman Gary Hooser had been polling applicants for their stand on the bill he sponsored.

The panel met in executive session and winnowed down the list of applicants to Kualii and Chock. Both men were nominated and voted on in open session, with Chock winning in a 4-2 vote. Furfaro, in casting the tie-breaking vote for Chock, promised to help Kualii in his next election.

Kualii's 2011 appointment was also challenged as a violation of the “Sunshine Law,” though on different grounds. However, according to a Dec. 30, 2011 OIP memo:

Because OIP was not presented with any specific facts indicating that councilmembers discussed the successor selection before the Council’s meeting, and because OIP believed there is a plausible alternative explanation for the Council’s apparent assumption that Mr. Kualii was likely to be selected, OIP could not conclude that the Council’s selection of Mr. Kualii was the result of improper discussions, including possible serial one-on-one communications.

Though one observer felt the 13^th claim was the weakest in the biotech companies' complaint, a top Hawaii attorney disagreed.

“Federal judges don't like things that on the surface appear to be rubes making up their own rules to subvert legal processes,” the attorney said. “It strikes them as a little too 'Hazzard County.' Or in this case, Dukes of Hoozer.”

Perhaps the Charter Commission should get to work on an amendment that specifies a process for filling Council vacancies instead of letting the Council continue to fly by the seat of its pants.

Seed Companies Sue to Invalidate Bill 2491

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

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

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

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

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

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

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

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

It violates the Kauai County Charter; and,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Musings: Slim Pickings

As the Charter Commission hits the road for a series of public meetings on creating County Council districts, folks will find the pickings slim and largely unpalatable.

And I'm not talking about the pupu. I mean the one and only proposal they're offering: seven districts.

Not five by-district and two at-large, as was proposed by the Commission's special committee, or the three-four plan that was just 161 votes shy of passing in 2006, or four and three or hey — how about put everything on the menu and see what people like? Then take that out to the voters in the form of a charter amendment.

But no, only one choice is on the table: Carving Kauai into seven small wedges where you get to vote for only one Councilmember. Under that scenario, a candidate could get elected with just 2,000 votes. By comparison, Tim Bynum needed more than 12,000 votes to tag the last place Council seat.

Which brings us to a major impetus for districting: it can make it easier for political newcomers — the unconnected, so to speak — to break in. While districting appeals to voters seeking more accessibility from their elected officials, candidates like it because it narrows the turf that must be covered in running a campaign.

Still, the “seven district special” is an option that many will find hard to swallow. It seems people are hungering for cohesiveness, rather than the kind of divisive fiefdoms that seven districts could generate. Plus relinquish seven votes for just one? (Not that I've ever cast all seven.)

Under the tentative Charter amendment, a reapportionment committee would create seven districts before the 2016 election. The top two candidates in each district primary would duke it out for the Council seat in the general election.

For a bit of backstory, last year the Commission appointed a special committee of Pat Stack, Joel Guy and Ed Justus to look into districting. They proposed electing five Councilmembers by district and two at large. The trio made their report at the Aug. 26, 2013 Commission meeting, where the minutes state:

Mr. Stack said he thought the time for districting had come. There are certain parts of the County that are seemingly unrepresented. By employing the five districts, which would be in concert with the most recent Census in terms of geography and population trends, it gives fair and equal representation to each of the give districts, and that has not existed quite some time, if ever. Allowing two of the voter getters to remain at-large also seems to be in concert with what has been done for a long time.”

That was followed by a discussion that touched on numerous points. A popular second-place candidate in a district election could have more votes than an at large candidate, but still not win a seat. A candidate could get just one vote in a district election and win. Should everyone vote for candidates who represent districts, as Maui does, or only for your own district?

The sub-committee report rejected the district-at-large concept, saying on Maui it had created a legal problem when a candidate received the majority vote elsewhere in the county, but the lesser vote in the home district.

The report also included the results of previous districting amendments. In 1996, voters rejected a 5-2 proposal by a vote of 9,589 to 8,456. In 2006, a 3-4 plan was narrowly defeated in a vote of 9,396 to 9,557. In that election, districting was favored by a majority in all areas of the island except for the section from Kapaa town to Puhi.

At the Sept. 23, 2013 Commission meeting, Ed said he felt that showed "the outlying communities want to have someone that lives in their area to represent them."

After some discussion, the Commission decided to reject the 5-2 proposal and go with a seven district proposal instead. Ed and Carol Suzawa voted in opposition.

Then-Chair Jan TenBruggencate suggested conducting community meetings to “hold a discussion on the subject of districting.” Joel said he felt the sub-committee had already reached out to the community, and came back with the 5-2 plan.

Ed argued for taking out a range of ideas, but Carol said the Commission had already voted for the seven-seat proposal, so they needed to stick to that. Deputy County Attorney Jennifer Winn noted that people legally would not be precluded from suggesting other proposals.

However, the press release that was sent out takes a narrow focus:

A sub-committee of the Charter Review Commission has scheduled three public meetings next month to discuss and gather input on a proposal to elect the members of the County Council by district. The proposal is based on seven districts with approximately the same population in each district.

Hopefully other configurations will be seriously considered. Given the close vote in 2006, it seems reasonable to again take a charter amendment out to the voters. But seven districts seems destined to be a dead duck, which may well be why it's the one under consideration.

Oh, and just so nobody gets their hopes up, my reference to pupu was strictly figurative.  I wouldn't be expecting any refreshments. 

Meetings are 6 to 8 p.m. Jan. 9 at Kapaa Neighborhood Center, Jan. 13 at Church of the Pacific in Princeville and Jan. 16 at the Waimea Neighborhood Center.

Musings: One and Only Question

Seeing my KIUC smart-meter-fee ballot in the mail today got me thinking about the one other time we went through this process — by which I mean a petition-prompted election to let members vote on something the Board had already voted on.

It was back in July 2011, and the issue was the Board's decision to hire Free Flow Power as hydroelectric consultants. Just 7,502 people voted — about a quarter of the membership — and a whopping 72 percent supported the Board.

Translation: Most members don't give a rip what KIUC is doing, and among those who do, a majority seem to trust the elected Board.

Now we're being asked if we think the Board was right to charge people who opt out of the smart meter grid fees associated with that choice. The fees are $10.27 per month, with meter switch out fees of $50.64 residential and $138.80 commercial.

Smart-meter opponents say the fees are “punishment” for opting out, and in a sense, they're right. KIUC does want everyone to have a smart meter because they were installed to create a more stable grid and manage all the solar that's coming into the system. They also allow the utility to offer us rate incentives to use electricity during the day, when it's produced by the sun, instead of at night, when it's generated by burning oil. The more people who participate in the grid, the greater the efficiency.

Luke Evslin elaborates on the rationale in his thoughtful blog, Ka Wae.

So yeah, if you're not on board for the "greater good of the grid," so to speak, you get dinged. But at least you get the chance to opt-out. The Board wasn't going to allow it, but changed its mind after some members spoke up. Very few utilities — and no other co-ops — allow opt-outs.

Smart-meter opponents say the Board is undemocratic because it never asked the members before spending $5.5 million (the feds picked up half of the $11 million tab) on the smart grid. And it's true, the Board didn't. Just like it didn't ask us if it should spend $5.5 million on the Lydgate substation. But KIUC does have to get approval from the state Public Utilities Commission (PUC) for all expenditures over $2.5 million. The public can participate in that process, and we're also represented by a Consumer Advocate. In still another advantage to Kauai folks, our own Mina Morita is the chair.

Yet in looking through the PUC docket on KIUC's smart grid expenditure, I found no public testimony opposing the smart grid. The application was before the PUC for nearly a full year, from October 2010 to September 2011, but no one spoke against it. And it certainly wasn't a secret. The topic was covered in numerous issues of “Currents” magazine, as well as in quarterly meetings and annual reports. 

Though I can understand why people might have missed the smart grid approval — I didn't write about it for Honolulu Weekly until March 2012 — a sizable group of opponents had formed by the time the PUC took up KIUC's recent request to charge opt-out fees. 

Yet only about a dozen submitted testimony to the PUC, the forum where the action went down. People complain they're shut out of the process, yet they aren't fully participating when they have a chance. Instead, they wait until it's all settled, and then launch a petition drive to try and overturn it. Or in the case of Adam Asquith, file an injunction to try and stop it.

That feels disingenuous to me. Just like it feels disingenuous for smart meter opponents to criticize KIUC for spending member money to promote a Yes vote when they're using listener-supported KKCR radio to advance a No vote. Four of the most outspoken smart meter opponents have talk shows on KKCR that give them 18 hours of prime air time monthly. That's the kind of advertising no money can buy. And who polled KKCR members to see if they were OK with turning over the talk shows to the no-fee contingent?

Though just 10 percent of KIUC's 30,000 members have opted out, I saw this baffling post on Facebook: 

if we are a cooperative does the majority interest always trump the minority? 

Mmm, yes. Ironically, the guy who posted it was a staunch supporter of Bill 2491, where the rallying cry was "this bill must be passed because everyone supports it!" But now, when he's clearly in the minority, the majority interest is no longer primary. 

While the ballot language is strictly about fees, smart-meter opponents have brought up everything else: health, privacy, Board processes, expectations of a co-op, hurt feelings, etc, etc. All of these are highly emotional issues that can be discussed endlessly, subjectively and without resolution. By creating this venue to bitch about KIUC, opponents are attempting to turn the election into a referendum on the utility as a whole. That's because their broader agenda is to get rid of smart meters entirely, and change the management style of KIUC.

Ridding the island of smart meters ain't gonna happen, at least, not any time soon, and not without some solid proof of serious health, environmental or economic detriment. And it's most certainly not going to happen as a result of this election.

As for changing the management style of KIUC, in looking back at some of my coverage of the Free Flow election, I was reminded that Pat Gegen was among the KIUC critics. Now he's on the Board — where he's being criticized by some of his former fellow critics.

Though there's been some progress at KIUC since the 2011 vote, the utility still faces deep community distrust. Since we are a co-op, that needs to be addressed, be it through forums, task forces, rule changes, new Board members, ho`oponopono or what have you. 

But this election is not about any of that. So let's push aside all the rhetoric and emotion and drama, and focus on the one and only question now before us: Was the Board right to charge people for opting out of the smart grid?

Musings: Swan Song

A crescent moon brightens in a western sky draining gold as the cacophony of fighting roosters quiets to a dull roar that with darkness will become silence, broken by chirping crickets and river song.

I'm not into pop songs, but the headline Kansas Farmer has New Internet Hit with Miley Cyrus Parody caught my eye when I linked to the AgWeb site, intending to read “USDA Opens Door to New Herbicide-Resistant Seeds.”

It was another example of how farmers are taking to social media, talk shows and the lecture circuit to add their voices to the growing din about agriculture — a trend I'd read about in a series of articles in Acres USA.

Small dairy farmers in western New York spoke at foodie conventions in Manhattan to make urban “locavores” aware of their existence. Other farmers have joined Twitter and Facebook to share the farm experience. The Peterson Farm Bros reinforce the message of God-loving family farmers working their asses off to “grow your food” in viral music video parodies like “I'm Farming and I Grow It,” “Chore" and “Farmer Style.”  

Sample lyrics: "Without the farmers working we would all be starving. Do you hear what I'm saying?" "Gotta feed everybody, gotta feed everybody." And "Agriculture is so important to me and it should be to you."

Though farmers are late to a public relations frenzy already dominated by anti-GMO activists and chemical/seed companies, that freshness may give them an edge. Americans are always hungry for something new to devour, and they may be getting indigestion from the ongoing bickering over GMOs.

And according to a front page New York Times article that uses Hawaii Island's anti-GMO bill as a case study, that argument won't be settled anytime soon. The piece, which follows Councilman Greggor Ilagan through his decision to ultimately vote against the bill, emphasizes the debate between scientists and lay people over the safety of GMOs.

What it ultimately comes down to is we don't know the answers to many of the questions being raised about GMOs, and even if we did, it's unlikely they'd be fully accepted by either side, seeing as how distrust is so rampant.

But some things are known, like many weeds are becoming resistant to glyphosate, the world's most popular herbicide. As you may recall, the chemical companies began by genetically engineering crops to withstand direct applications of glyphosate and other herbicides. But the weeds have adapted, prompting the chem companies to offer farmers a different mix of herbicides — and GE seeds to handle them.

Which brings us back to the AgWeb article on how Dow is seeking federal approval for its Enlist corn and soy seeds, which can withstand applicants of 2,4-D, as well as glyphosate and other herbicides. It went on to report:

Currently, the seeds, which have been under USDA review for several years, can only be used in tightly controlled field trials. USDA on Friday recommended full deregulation of corn and soybean traits.

Meanwhile, the Environmental Protection Agency, which is conducting its own review of 2,4-D, will release its report in the coming months.

Today’s announcement came as something of a surprise given that last May, USDA announced that it would require a more stringent environmental review of Enlist crops waiting for market approval.

The draft EIS — prepared by the USDA — acknowledged that 2,4-D-resistant weeds could cause a new set of problems:

As noted above, 2,4-D is already the third most widely used herbicide in the United States. Among agricultural uses, 2,4-D is widely used for weed control on small grains (wheat, barley, oats, and sorghum) and orchards. If 2,4-D resistant weeds become more prevalent as a result of its use on Enlist™ corn and soybean, growers of these other crops that rely on 2,4-D for weed control may need to modify management practices to control weeds that become resistant to 2,4-D. The management changes would increase the complexity and cost of weed management programs for these growers. Growers most likely to be affected include those who grow small grains.

The EIS also pointed out that farmers aren't the only ones using it:

2,4-D is an active ingredient in hundreds of herbicide formulations and is commonly found in lawn care products (for example Scotts^® Turf Builder^® Weed and Feed) and widely available to consumers at retail outlets and home and garden centers.

Ultimately, the USDA determined:

While the selection pressure for 2,4-D resistant weeds is expected to be greater under the Preferred Alternative, the selection pressure for GR weeds is expected to be greater under the No Action Alternative. This is because the Enlist™ cropping system decreases grower reliance on glyphosate by including an additional type of herbicide in the weed management system.

In other words, the Roundup-resistant weeds will win for sure if they don't up the ante, which will inevitably lead to yet another re-upping of the ante, and another and another — in our yards, and in the fields.

And we know we can't keep doing that, because we know pesticides aren't good for people and the planet. We also know the population is growing, and the planet is undergoing dramatic climate changes that are going to affect food production.

It's a critical time for agriculture, and the civilization it has created.

And in a perfect expression of America today, we're responding with bitter discord and PR campaigns — a pop parody of a swan song.

Musings: Inside Out

The New Year was only hours old when Jimmy Trujillo, an activist and construction technology teacher at Kapaa High and KCC, posted a VOTE NO on KIUC fees graphic on his Facebook page. He added these exultant words: “the first cause of the new year!....”

Yeah! Get 'em!

Later, he posted this comment:

James Trujillo KIUC want to penalize folks who have concerns about their health and privacy. as a coop, we should all have a say. putting to a vote is great. spending our coop money in order to sway the vote is just wrong!elections should be fair, rates should be fair. anything else is NOT PONO. vote NO or don't vote at all!

Jimmy is the same guy who has been trying to make me stop saying anything that runs counter to what he considers the “progressive cause.” Now he's trying to make people stop voting unless they vote his way.

Gee, sounds like a great way to have civil discourse, rationally discuss the issues, reach a consensus, respect people with differing opinions on a complex issue, advance democracy.

This is exactly the same kind of mindset that I saw in many of the pro-2491 folks — you're either with us or against us; there's no middle ground, no correct or pono way of thinking other than our way of thinking. 

Those who dared to voice an opposing opinion were immediately told to STFU, attacked as evil and out of touch, and accused of being in the pay of chemical companies. 

Ironically, all that ugliness, intolerance and bullying was couched in rhetoric about peace and love, and adorned with Facebook hearts.

Just as Jimmy, who has labeled those who support smart meter opt-out fees as the “corporate faithful,” apparently sees no conflict between his actions and his first post of 2014:

to all my frenz & family, happy new year!

i wish you best of the best in 2014!

bee love & bee loved!

bee healthy & bee happy!

bee kind & bee loving!

bee caring & bee respectful!

My own wish for the New Year is this: 

May we all engage in a bit more insightful introspection this year before we try to change the world. Because the world out there is nothing more than a projection of what is inside all of us.