The Kauai County Council made the correct decision 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.
As long as the cost of the appeal, even if it goes all the way to the Supreme Court, is capped at $12,750 to cover costs for the special counsel’s continued services, it is worth it. The county has so much invested as it stands, not just in money, but in time, in resources, in community input, it should finish this definitively. Might as well not leave any doubt that it pursued this to a conclusion. The county needs to finish, once and for all, what it started. If it can do so, without extreme expense, it should.
“I can find no good reason not to support this modest amount of money,” said Councilman Gary Hooser.
Let’s be clear, though. McCorriston Miller Mukai MacKinnon’s decision to waive future legal fees beyond the $210,000 previously authorized is what makes this appeal possible. Without that move, with no ceiling on the financial expense in this appeal, we would not support it. We do not recommend the county spend money beyond this amount. There must be an end in sight to this process. At some point, if necessary, it must concede defeat and do the best within the process available to it and focus on unifying this island.
To date, the McCorriston firm has billed the county about $160,000 of the $210,0000 that has been authorized. That basically means the appeal could cost up to $62,750 — $12,750 added to the $50,000 difference. That’s a cost the county can afford to see this through. This firm believes it can win this case.
“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,” said Attorney David Minkin. “We believe, very strongly, that the court got it wrong.”
There is no doubt Bill 2491, now Ordinance 960, has been a divisive issue on Kauai. 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.
Many believe the county should never have been involved here, anyway. And there are many people who believe the county should accept Judge Barry Kurren’s decision and move on. They point out the activities of the companies in question are already regulated by governmental agencies under state and federal laws. The decision to appeal could very well do nothing more than widen that community divide and the county could lose.
But there are also many who believe Kurren’s decision was the wrong one and the county shouldn’t give up. This all started out of concerns of many for the health and safety of Kauai’s citizens. Those concerns are far from resolved.
As Councilman Mason Chock points out, 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. That’s reasonable. The council has taken an appropriate step in funding this appeal.