No decision on appeal

LIHUE — The Kauai County Council will take another week to weigh its options before voting on whether to appeal a federal judge’s recent ruling that Ordinance 960 (formerly Bill 2491) related to pesticides and genetically modified crops is preempted by state law.

If the council does go that route, it could prove to be a long — and possibly costly — endeavor.

Attorney David Minkin, who was hired as special counsel to defend the county in the case, said an appeal of the ruling in the 9th U.S. Circuit Court of Appeals would take at least a year, and possibly longer. 

“So, you’re looking at a long process?” Councilman Mel Rapozo asked Minkin. 

“Yes,” Minkin said.

However, that may be where the county is headed.

Before the council moved into executive session to be briefed on the matter, Minkin discussed a “media fact sheet” he prepared related to Magistrate Judge Barry M. Kurren’s order on pre-emption, and said there are things that “got lost” in reports about the decision.

First, Minkin said the judge ruled that while state law pre-empts aspects of Ordinance 960 pertaining to pesticide regulation, it is not pre-empted by federal law. Additionally, state law and general police powers give counties the authority to enact regulations relating to agricultural activities and the Hawaii’s Right to Farm Act does not preclude the county from regulating nuisances, according to Minkin.

Echoing statements made by Councilwoman JoAnn Yukimura, Minkin said the federal court narrowed things down, eliminated some of the arguments made by the seed companies and gave the county some “very good guidance.”

As for Ordinance 960 being pre-empted by the Hawaii Pesticide Law, Minkin said the court ruled the state law is a “comprehensive scheme and pattern,” meaning it indicates a legislative intention to be exclusive and uniform throughout the state. 

“That’s something that I disagree with as an attorney,” Minkin said. “But we’ll take that up in executive session.”

Councilman Ross Kagawa questioned Minkin about whether Kurren’s recent ruling followed the predictions made by Deputy County Attorney Mauna Kea Trask in a 66-page legal opinion released by Mayor Bernard Carvalho Jr. back in October. 

“Was Mauna Kea’s work, or was his recommendation, was it on the mark or off the mark?” he asked. 

“If you go on federal pre-emption, he was off the mark,” Minkin said. “If you go on state pre-emption, he was off the mark on 50 percent … That’s the whole thing. The law is gray.”

Councilman Gary Hooser, who introduced the bill that became Ordinance 960, said what Kurren’s ruling means is that counties do have the right to put forward legislation that regulates agriculture and nuisances under the guidelines of the decision.

“It’s not like this whole issue, if we want to move forward with increased protections for the community, it’s not dead in the water,” he said.

Yukimura asked Minkin what his read was on whether Kurren’s ruling also invalidates the Environmental and Public Health Impact Study portion of the county ordinance; however, Minkin said that was beyond the scope of his contract and deferred to the County Attorney’s Office.

“You are dealing with a decision of the court,” Yukimura told him. “And that is what you’ve been hired to do. So we need to know what that ruling says about the EPHIS.” 

“Basically, the entire ordinance was struck down,” said Minkin, adding that the EPHIS was part of that ordinance.

Yukimura said she believes nothing in Kurren’s decision invalidates fact-finding and research. The EPHIS would address “environmental and public health questions related to large-scale commercial agricultural entities utilizing pesticides and genetically modified organisms.”

Councilman Tim Bynum asked if it is possible for third party intervenors in the case, which include Earthjustice and the Center for Food Safety, to appeal the ruling on their own, and what the county’s role would be if that happened. 

Minkin said he expects others will appeal, and that it would be up to the county to decide whether it wants to give special counsel its blessing to go forward.

“There are times where I’ve been involved in cases where there’s not a blessing going forward,” he said. “We just basically take no position and ride it out.” 

The council is expected to revisit the issue during its regular meeting Wednesday, Sept. 24.

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

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