Appeals filed by nonprofits

LIHUE — As anticipated, four nonprofit groups appealed a federal judge’s ruling that struck down Kauai’s pesticide and genetically modified crop ordinance. 

An appeal was filed Wednesday in the 9th U.S. Circuit Court of Appeals by Ka Makani Ho’opono, Center for Food Safety, Pesticide Action Network North America and the Surfrider Foundation. The nonprofits are represented by Earthjustice and the Center for Food Safety.

“Today this fight continues, as we appeal this decision,” George Kimbrell, senior attorney for Center for Food Safety, said in a release. “We stand with the people of Kauai. Contrary to the court’s unfortunate decision, they do have the authority to protect themselves from multinational corporations taking advantage of their resources and threatening their health and safety.”

The County of Kauai, represented by attorney David Minkin of Honolulu-based McCorriston Miller Mukai MacKinnon, filed its own appeal Tuesday.

Last week, the Kauai County Council voted 5-1 to approve additional funding so that its special counsel could fight Magistrate Judge Barry Kurren’s ruling that Ordinance 960 (formerly Bill 2491) regulating pesticides and GMOs on the island is pre-empted by state law, and therefore invalid.

The cost of that appeal has been capped at $12,750 following an offer from Minkin’s law firm to waive all future legal fees beyond the $210,000 previously authorized.

“We believe, very strongly, that the court got it wrong,” Minkin said last week. 

Ordinance 960, which was slated to go into effect in October, 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. Syngenta Seeds, DuPont Pioneer, Agrigenetics and BASF Plant Sciences filed suit in January, arguing the county violated the state and federal law and that the bill unfairly targeted their industry.

Asked Thursday if the companies planned to file their own appeal, DuPont Pioneer spokeswoman Laurie Yoshida wrote, “We have no further comment.” Other industry representatives did not respond to the The Garden Island’s request. 

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. 

Kurren held that the ordinance was not pre-empted by federal law or by state laws such as Hawaii’s Right to Farm Act.

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

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