On to appeal

LIHUE — The Kauai County Council voted 5-1 Wednesday to approve funding to appeal a court ruling that County Ordinance 960 regulating pesticides and genetically modified crops on the island is pre-empted by state law, and therefore invalid.

The cost of that appeal, even if it goes all the way to the Supreme Court, has been capped at $12,750 following an offer from the county’s special counsel to waive all future legal fees beyond the $210,000 previously authorized.

Attorney David Minkin, of Honolulu-based McCorriston Miller Mukai MacKinnon, said the ordinance is something his firm wants to continue to support and defend, and that the appeal is a winnable battle.

“At the end of the day, we do not believe that the ordinance is pre-empted by the current statutes on books with the state of Hawaii, and the court held otherwise,” he said. “We believe, very strongly, that the court got it wrong.”

Councilman Gary Hooser, who introduced Ordinance 960 (formerly Bill 2491), described the McCorriston law firm’s offer as “generous” — one that should not be turned down.

“I can find no good reason not to support this modest amount of money,” he said.

After two hours in executive session Wednesday morning, the council returned to its chambers and voted to approve the Office of the County Attorney’s request for additional funds to “cover ‘costs’ for special counsel’s continued services.”

Councilman Ross Kagawa cast the lone dissenting vote. He said his stance from the very first meeting on Bill 2491 was that the legislation had “significant legal problems.”

“Thus far, my hunches have been true,” he said. “The bill has been determined invalid by Judge (Barry) Kurren and there is nothing that I see that would change my opinion of what will happen in the appeal process.”

Councilman Mel Rapozo, who along with Kagawa voted against overriding Mayor Bernard Carvalho Jr.’s veto of the bill, was excused from the meeting for personal matters and did not vote.

Industry, mayoral disappointment

In a joint statement Wednesday, Syngenta, DuPont Pioneer, BASF, and Agrigenetics, Inc. (a company affiliated with Dow AgroSciences LLC) — the four companies that sued in January to block implementation of Ordinance 960 — said they were disappointed in the county’s decision to appeal.

“As we have said from the outset, our activities are already regulated by governmental agencies under state and federal laws and the County of Kauai has no authority to regulate in this area. Magistrate Judge Kurren has determined the ordinance is pre-empted by Hawaii state law and, therefore, invalid in its entirety,” they wrote.

The companies added that the public funds required to continue the litigation “could be better invested in priority projects that truly benefit the people of Kauai.”

Carvalho said he was disappointed because of the “potential cost of a lengthy appeal and the exposure we face if we lose the appeal.” 

“As I have always said, the state’s authority in matters regarding pesticides and agriculture is clear, but that doesn’t stop us from working collaboratively with the state to ensure that the unique needs of our county are met,” he wrote.

Carvalho added that the success of the voluntary Good Neighbor Program, the addition of a second pesticide position on Kauai and the talks his administration is currently having with the Department of Agriculture about the possibility of doing the joint fact finding process and environmental public health impact studies as a collaborative effort all lead to “getting the job done without a costly legal battle.” 

“We will continue to move forward and I predict we will make significant progress in addressing the public’s concerns, as this matter winds its way through the legal process toward an uncertain conclusion that could be very costly for the residents of this island,” he wrote.

To date, the McCorriston firm has billed the county for about $160,000 of the $210,0000 that has been authorized, according to county spokeswoman Beth Tokioka. 

In other words, by those figures, the appeal could cost up to $62,750 — $12,750 added to the $50,000 difference.

Kirby Kester, president of the Hawaii Crop Improvement Association, a trade group representing Hawaii’s agricultural seed industry, voiced similar disappointment. 

“As an industry, public health and safety are priorities in our operations,” he wrote. “We believe existing federal and state regulations already safeguard our community and our environment and that the industry exceeds these requirements. Additional burdensome and redundant laws do not advance the health and well-being of the community and have become a distraction to Hawaii’s agricultural industry.”

Additional appeals?

Not surprisingly, the county likely won’t be alone in the move it made Wednesday.

In April, the defense team grew when Kurren allowed Earthjustice and the Center for Food Safety to intervene and represent community members and several nonprofit organizations, including Ka Makani Ho‘opono, Pesticide Action Network and Surfrider Foundation.

Earthjustice attorney Paul Achitoff said Wednesday he supports the council’s appeal and that the intervening groups plan to file their own.

“I really can’t think of a good reason for the county not to have appealed, even if it had cost some money,” he said.

“I think he made some mistakes in his decision,” he added of Kurren.

Whether the plaintiffs plan to file an appeal of Kurren’s ruling is not yet clear.

Ordinance 960 was passed via a veto override in November and required large agricultural companies to disclose pesticide use and the presence of GMO crops, as well as establish buffer zones around sensitive areas, including schools and hospitals. The industry filed suit in January, arguing the county violated the United States and Hawaii constitutions, multiple federal and state laws and the Kauai County Charter in passing the bill.

On Aug. 25, Kurren issued two orders and a final judgment in the case. In his “Order on Preemption and Order on Various Motions,” he first determined that the county had the statutory authority to regulate in the area of agriculture. However, the court struck down the ordinance based on its interpretation of some provisions of state law. Significantly, the court held that the ordinance was not pre-empted by federal law or by state laws such as Hawaii’s Right to Farm Act.

Gaining clarity

Councilwoman JoAnn Yukimura said state pre-emption of counties is a matter of state law, and it only makes sense that any decision about what state law says is made by the Hawaii Supreme Court.

“I do think that the federal court erred in not certifying the question to the state court,” she said. “And that’s why I believe that it’s worthy of an appeal.”

Councilman Tim Bynum pointed out that Kurren wrote his decision “in no way diminishes the health and environmental concerns of the people of Kauai.”

“This is an issue of statewide and national importance,” Bynum said. “But most importantly for us, it’s about the health and safety of our citizens. Nothing about this court decision diminishes the legitimate concerns of the community and our responsibility to respond to them.”

Councilman Mason Chock said an appeal allows the county to keep the legal process moving forward while continuing to look at other potential solutions to address community concerns about the biotech industry.

Council Chair Jay Furfaro said Ordinance 960 has brought needed attention to the issue of being good stewards of the land, not only on Kauai but around the state. His reason for supporting an appeal was simple — to gain clarity about the various political subdivisions and their responsibilities. 

“While Bill 2491 did trigger a very deep and unfortunate polarization, it did also raise a very, very important issue about our community’s health,” Yukimura said. “It’s an issue that needed and needs to be addressed.”

Hooser stressed that the McCorriston firm believes it can win on appeal and is “putting their money where their mouth is” by waiving additional fees. 

In a recent poll on The Garden Island’s website, 57 percent of responders said they felt the judge made the wrong decision in his ruling and that the county should appeal.

Thirty-three percent voted it was the right decision and that the county should not appeal, while 10 percent said they were tired of hearing about the case and there are more important issues to deal with.

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

“I can find no good reason not to support this modest amount of money”

Gary Hooser

Kauai County Councilman