Don’t be fooled by ‘charter amendment’

The County Council has taken a cautious first step toward derailing a proposed, so-called, County Charter amendment that would effectively ban GMO agriculture on Kauai.

At its meeting Wednesday, the council allowed the County Clerk to start reviewing signatures submitted last week, but clearly recognized that the initiative will be hard-pressed to call itself a charter amendment and will likely be required to obtain enough additional signatures to pass muster as an initiative ordinance. The council directed the county attorney to produce within a week a legal analysis of whether this, as County Council Chairman Jay Furfaro put it, “is a cat or a dog,” meaning is it an initiative masquerading as a charter amendment to avoid the signature gathering threshold of 20 percent of voters, as opposed to just 5 percent?

In so doing, the council appeared to recognize the potential dangers of this measure, which — among other things — would criminalize growing certain kinds of food on Kauai and illegally secede from the federal and state governments. If council members do not get to the bottom of what it actually says and who is actually behind it, they will violate their oaths of office and do irreparable damage to Kauai County.

Under the County Charter and council rules, the council has the flexibility to ask the right questions when a suspect “charter amendment” comes to it after signature-gathering. The council has taken a cautious first step toward doing so.

The initiative is falsely called a “charter amendment,” instead of an initiative ordinance, because a loophole in the County Charter sets the qualification bar lower for charter amendments than for initiative ordinances. Its plain language makes clear that it can only be called a charter amendment with a wink and a nod.

The Charter Review Commission should rectify the error, because the Wednesday discussion made clear that the County Charter really doesn’t spell out what happens if someone submits an initiative as a charter amendment deliberately to take advantage of the reduced signature requirement that comes with it. It was very clear Wednesday that it has been mis-branded and the council needs to know the “charter amendment’s” provisions would take Kauai County outside the authority of existing federal and state law and enact one of these most extreme ordinances the county has ever seen.

If you were approached to sign the petition to get this measure on the ballot, you were probably only shown a one-page summary. When I was approached in Hanapepe, the signature gatherers even said they had no copy of the full initiative in their possession and could not accurately provide a Web address. That, alone, is an apparent violation of county initiative qualification rules.

But if you did read this summary, you’re entitled to know that it did not accurately describe the initiative. A reading of the plain language of the summary and comparing it to the initiative would make this startlingly clear. Don’t take my word for it. Read both for yourself. You were deceived by the proponents.

The initiative:

• Would create a new crime of growing food on Kauai and subject an offender who plants as little as a single genetically modified or genetically engineered papaya tree to fines of $10,000 to $25,000 per day.

• Would regulate pesticide use, but only in ways roughly similar to Bill 2491, a measure that is itself under legal challenge in a case that is likely to take several years go conclude, cost the county millions of dollars and result in the ordinance being thrown out.

• Would declare Kauai County exempt from federal and state laws and regulations regarding GMO/GE foods. Accepting this provision would force County Council members to violate their oaths of office and, possibly, state law.

• Would set up an office of, effectively, a county agriculture czar that would operate outside the bounds of rules and procedures governing other county boards and commissions and make it nearly impossible to remove the incumbent, whose powers over Kauai agriculture would be frighteningly broad. Just firing a corrupt agriculture czar would require the votes of an unprecedented five of the seven members of the County Council.

• Would require that foods sold on Kauai—regardless of whether they meet all extant federal and state safety standards—prove they are safe “beyond a reasonable doubt,” lifting a standard of proof from criminal law that has no place in food regulation. It would be impossible for example, to prove that a food so basic as milk is safe “beyond a reasonable doubt.”

• Exposes the county to incalculable financial harm because it declares that any resident who files a lawsuit againt GMO/GE food producers could recover all of his/her costs even if s/he lost the case or the matter was found to be frivolous litigation.

• Define the term “toxin” in such a broad way that it could be applied to a wide range of foods whose safety is routinely accepted throughout the United States.

• Would set up a GMO/GE monitoring panel with two seats reserved for nominees of an extremist political activist group, the Pesticide Action Network (which has no operations on Kauai), and limit local farmers to just a single seat.

Imagine, if you will, that Kauai enacted a gun control ordinance involving a monitoring panel that provided specifically that the National Rifle Association got to pick two members and the people of the county just one.

One has to wonder who’s behind this. The only named proponent is a shadowy website, kauairising.org, which identifies just one person as its operator. It apparently has no board. It has no listed address and no phone. It apparently lacks nonprofit status. Its financial records are not public and it’s impossible to determine who is funding this effort, why and for how much. Several attempts I’ve made to pose questions of this nature of the organization have been met with silence.

If there was a science basis to act against GMO/GE foods, the situation might be a little different. But, as last year’s proceedings on Bill 2491 established, the anti-GMO crowd is long on accusatory anecdote, innuendo and emotional account by “victims” (whose victim-hood is almost always undocumented) and short on science. That’s because there is no body of scientific sufficient to justify treating GMO/GE foods as if they are poison.

This initiative is really an ordinance masquerading as a charter amendment to escape the more stringent signature-gathering rules that apply to the latter. As such, it is a distortion of the political process. If an ordinance is to be enacted expanding upon Bill 2491, it should happen out in the open, in the political give and take of the County Council.

This initiative is one of the most dangerous manifestations of the drive by the extreme political right and left to usurp the right to decisions over our basic nutrition that are really the province of individuals and families. The County Council has the authority to hold this process up until a thorough review of what the initiative actually says and means and who and what are really behind it. It must do so.

• Allan Parachini, a former journalist and ACLU and Los Angeles Superior Court public affairs officer, and now a furniture maker, lives in Kilauea.

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