Kauai Rising petition falls

LIHUE — The Kauai County Council voted Wednesday to reject Kauai Rising’s proposed charter amendment aimed at placing the burden on the island’s agrochemical industry to prove their operations are safe.

The decision means the petition will not be sent to the County Clerk for signature verification. And the odds of it making its way onto the November ballot are slim to none.

Councilman Mel Rapozo, who was absent two weeks ago when a six-member council tallied a split vote, said it is clear Kauai Rising’s proposal does not meet the requirements of a charter amendment. If the council simply “rubber stamped” it, as Rapozo felt many were urging it to do, he believes the county would almost certainly end up in court, where two previous charter amendments have already been invalidated.

“I am proud of our county this time saying, ‘Wait a minute. We’re not meeting the requirements. This isn’t a charter amendment. It is an initiative,’” he said.

Councilman Ross Kagawa said it was important that the council to do its job and take into consideration the recent legal opinion from the County Attorney’s Office.

“I’m going to do my job today and reject this charter amendment because it is an initiative,” Councilman Ross Kagawa said.

Down two members, Tim Bynum and Gary Hooser, who left the meeting early to travel to Oahu to attend a summary judgment hearing on County Ordinance 960, the council voted 5-0 not to receive the petition. The council also requested that the County Attorney’s Office explore possibilities of obtaining a declaratory judgment to clarify what the proposal truly is.

Councilwoman JoAnn Yukimura agreed with Kauai Rising representatives that creating a County Office of Environmental Health falls within the guidelines of the Kauai County Charter, but that the proposed regulatory system for that office, including penalties for noncompliance, is a bill for an ordinance.

Simply naming it a charter amendment doesn’t make it one, she said.

The two types of citizen initiatives require a different number of signatures to put each one to a vote. While it takes only 5 percent of registered voters to petition a charter amendment, 20 percent is required to put forth an ordinance or referendum. The difference is 2,037 signatures versus 8,147.

Wednesday’s discussion echoed previous meetings, in which council members argued back and forth about whether it was their responsibility or a court’s to decide what was being proposed.

Councilman Tim Bynum said it is a basic separation of powers issue, and that the charter was set up so that the general public could bypass the council.

“I think it would be an incredibly terrible precedent if the clerk or the council intervened in this process,” he said.

Hooser said the language in the charter is explicitly clear and does not give to the council the legal authority to discuss, debate or consider a rejection.

An amendment to the charter may be initiated either by resolution of the council or “by petition presented to the council,” signed by no less than 5 percent of registered voters, reads Article 24 of the charter. “Upon filing of such petition with the council, the county clerk shall examine it to see whether it contains a sufficient number of valid signatures of registered voters.”

“If they intended for it to say more they would have put more,” he said of those who wrote the charter. “It’s very clear. It’s very, very clear to me the intent of the people who drafted the charter … We do not have the legal authority.”

More than a dozen people testified Wednesday, with all but one urging the council to move the petition forward and give the people a chance to have their voices heard in November.

Carl Imperato urged the council not to take action that would undermine one of “the most important features of the democratic process” — the ability of voters to directly legislate through the initiative, referendum, recall and charter amendment processes. The only people qualified to determine whether the proposal is a charter amendment or initiative is a court, he said.

“The substantive intent of the charter is really clear. Give the voters a way to put something onto the ballot without interference from the council, the county attorney, they mayor. And that’s what should be driving your decision-making,” he said.

Lonnie Sykos said Kauai Rising represents “a vocal minority.”

“They represent the people who signed the petition,” he said.

Kauai Rising, Sykos said, is arguing that if enough people sign an illegal petition, the council has to put it on the ballot.

“Of course the government has an obligation to protect the citizens, including the operation of the government, from lawsuits,” he said.

During its first petition drive, Kauai Rising reportedly collected more than 4,000 signatures. Those signatures were never verified because Kauai County Clerk Ricky Watanabe rejected the petition, citing the group’s failure to use the proper form. In its second attempt, Kauai Rising said it collected another 3,030 signatures within a condensed 18-day timeframe.

In addition to shifting the burden of proof to the agrochemical companies to prove that their operations on Kauai are safe, the proposal would shift regulation and monitoring costs to the industry itself. It would also create a County Office of Environmental Health to implement and enforce the amendment, as well as establish civil and criminal penalties for noncompliance, including fines up to $25,000 per day, per violation.

In a recent legal opinion, the Office of the County Attorney said the group’s petition — which has been revised and recirculated since initially being thrown out — still did not meet the requirements of a charter amendment.

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Chris D’Angelo, environment writer, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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