Legal dust up

LIHUE — Proponents of Bill 2491 are saying Mayor Bernard Carvalho Jr. added insult to injury last week by vetoing the bill and releasing the County Attorney Office’s legal opinion on the matter.

The latter move really hurt.

Because, they say, the mayor’s double-whammy move could potentially weaken the county’s legal defense if the case ends up in court — as attorneys representing seed companies have promised it will.

Additionally, the county attorney’s opinion is being viewed as a “position statement” against 2491.

And the mayor’s choice to release it was a “self-interested” tactic, a news release issued Tuesday said.

“As a lawyer, I’m shocked that opinion was made public,” Earthjustice managing attorney Paul Achitoff said by phone Tuesday.

If he was advising the county and thought the bill was illegal in some way, Achitoff said he would never say it in public.

“By making the opinion public, you make it very difficult for the county to defend itself in court,” he said.

In an email Tuesday, county spokeswoman Beth Tokioka said Carvalho has the right to waive the attorney-client privilege if he feels it’s in the best interest of all parties involved.

“In this instance he has chosen to do so, feeling that with such a contentious issue, the key to finding consensus is through an abundance of information,” Tokioka said. “He wishes to be as transparent as possible.”

Previous mayors, as well as the current council, have released opinions for various reasons, according to Tokioka.

But Achitoff said 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.

The opinion — stamped in red with “CONFIDENTIAL … DO NOT DISCLOSE” at the top and bottom of the document — was written by Deputy County Attorney Mauna Kea Trask, and approved by County Attorney Al Castillo.

In mid-August, Hawaii Attorney General David Louie declined to provide an opinion on the controversial bill, despite a request to do so from Council Chair Jay Furfaro.

If the council eventually overrides the mayor’s veto, the bill would increase the administration’s jurisdiction over large agricultural operations — specifically related to pesticide spraying and genetically modified crops.

Some bill supporters were outraged at Carvalho’s veto last week, and frustrated when the mayor released the legal opinion.

The day after the veto, Kauai Police Department Chief Darryl Perry announced he might seek help from the Federal Bureau of Investigation to look into alleged off-island threats to Carvalho.

Teresa Tico, an local attorney who has said she would defend the bill in court pro-bono should it head that way, disagrees with Trask’s analysis, as well as the mayor’s decision to release it.

“No experienced litigator I know would allow the release of that legal opinion,” said Tico, former president of the Kauai Bar Association.  “(The mayor) is either very naive or he doesn’t want the bill to pass.”

During the council’s meeting Oct. 15, Syngenta attorney Paul Alston asked the council to release Trask’s opinion, but several council member objected to the idea.

“In court, the process is an adversarial one, so you don’t disclose your strategies or information to the other side,” Councilwoman JoAnn Yukimura said at the time.

An 11th-hour veto

While it wasn’t an easy decision, Carvalho said it was the responsible one.

In his four-page letter to Council Chair Jay Furfaro, the mayor summarized the most “troubling” legal points of Bill 2491, and said it would be a “dereliction of duty” to allow the bill to become law when its “legality is so questionable.”

“Existing federal and state law appears to impliedly pre-empt the county from enacting its own pesticide laws,” Carvalho wrote. “In this case, the State of Hawaii Department of Agriculture has been given authority by the federal government to regulate pesticides. Our attorneys explain that the state pesticide law is a complex and comprehensive regulatory framework that ‘indicates a purpose to occupy an entire field of regulation,’ thereby pre-empting a local authority from enacting such laws.”

Carvalho went on to write that Bill 2491 would also likely be challenged as an invalid exercise of the county’s police power, of the county’s ability to regulate public nuisances, and/or a violation of the Hawaii Right to Farm Act’s prohibition against public officials “declaring” such farming operations a nuisance.

The decision to release the county attorney’s opinion, Carvalho said, was in order to be fully transparent.

“Our community is deeply divided over 2491 and we can’t allow that to continue,” he wrote. “It is my hope that after reviewing the opinion, the reasons for this action will be clear, and we can then focus on finding common ground and moving forward.”

In an email to the mayor, made public on Sunday by Councilman Gary Hooser, Kauai resident and retired attorney Joe Norelli wrote he was particularly “appalled by the process by which this veto was accomplished.”

He said Trask’s 66-page legal position released to the public clearly intended to advance every conceivable legal argument against the bill, without providing any counter arguments.

“Either you requested that it be prepared in that manner or your legal staff did you a grave disservice,” Norelli wrote to Carvalho. “In either case, the people of Kauai have been denied a fair assessment of the legal merits of the bill.”

Tico agreed the opinion was not well-balanced.

Bill 2491 would require biotech companies Syngenta, DuPont Pioneer, Dow AgroSciences and BASF, as well as Kauai Coffee, to disclose their use of pesticides and genetically modified crops. It would also establish buffer zones between ag fields and schools, hospitals, roads and other sensitive areas, and require the county to complete a fact-finding study on the industry’s impacts to the environment and public health.

The council passed the bill on Oct. 16 by a 6-1 vote.

Proponents have voiced that Carvalho’s veto stung. But was the release of Trask’s opinion the nail in the coffin for 2491?

In a previous release, Achitoff — who has already made it clear to the council and mayor of his intentions to represent community groups if the industry sues — described the mayor’s release of the opinion as an “indefensible gift to the chemical industry.”

In an open letter published in early October, Achitoff and eight other attorneys (including retired Hawaii Supreme Court Justice Steven Levinson) encouraged the council to proceed with passing Bill 2491, as the state expressly grants the county the authority to protect the health, life and property of its people.

“No law expressly prohibits the County from taking this action, and no court cases clearly block the County from passing and implementing this Bill,” the attorneys wrote. “Moreover, ordinances with similar provisions have been passed elsewhere and have not been successfully challenged. We believe that Bill 2491 is sound, and the mere threat of a lawsuit by industry interests should not prevent the Council from taking action they believe is important to their community.”

But Tokioka said the legal arguments of implied pre-emption and the interference with the Right to Farm Act have been raised through the council’s process in vetting the bill.

“Hard to call it a ‘gift’ when it’s information they have already sourced for themselves,” she wrote.

In her email to The Garden Island Tuesday, Tokioka attached the 33-page letter sent to Trask Aug. 30 by Pioneer attorney Margery Bronster and Syngenta attorney Paul Alston. The letter responded to Trask’s request for legal analysis on several issues related to 2491.

“Imposing restrictions based upon fear, in the face of established science, is unreasonable, irrational and arbitrary,” Bronster and Alston wrote. “When the products being used have passed state and federal reviews, there is no rational basis for Kauai to enact contrary legislation.”

In conclusion, the two attorneys wrote Bill 2491 was “deeply and fatally flawed,” and that the council should be dissuaded from pursuing the matter further.

Until decided in a court, Achitoff said arguments are just arguments.

“I think there are very good arguments that Bill 2491 is perfectly legal,” he said. “There are many counties that have passed buffer zones, this is nothing new; the disclosure issues, we’ll see.”

As for the County Attorney’s Office, Achitoff believes there is a conflict of interest, as it has already shown it is biased in favor of the seed industry’s position.

“The county needs a lawyer that will really argue in the county’s favor,” he said.

In a release Tuesday, Denise Antolini, an environmental attorney and University of Hawaii law professor, said his view was that Bill 2491 would “ultimately be upheld by the Hawaii Supreme Court, where it will most likely be on appeal within one to three years given that industrial agriculture has consistently challenged or tried to end-run similar local-control ordinances nationwide.”

George Kimbrell, senior attorney for the Center for Food Safety, said the mayor’s decision was a political one, driven by fear of the companies opposed.

“We urge the council to override the mayor’s veto and effectuate the will of the island’s people,” he said in the release.

In his veto letter, Carvalho said the state Department of Agriculture has been working with the five largest agricultural companies on voluntary pesticide disclosure and buffer zone guidelines.

“We are awaiting more detail on the discussions between Department of Agriculture and the parties impacted by the bill,” Tokioka wrote in her email. “We understand that there may be an announcement later this month.”

The council will hold a special meeting Thursday to consider whether it will meet in as early as two weeks to vote on an override of the mayor’s veto. Thursday’s meeting begins at 9 a.m. at the Historic County Building in Lihue.

The final vote would likely take place Nov. 14. Five votes are needed to override the mayor.

Former council member Nadine Nakamura, who voted in favor of the bill last month, resigned from the council last week and took over as the county’s new managing director. She will not vote on the issue.

• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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