Judge tosses Big Island GMO law

LIHUE — A federal judge — the same one who threw out a County of Kauai law related to pesticides and genetically modified crops in August — ruled Wednesday that a Hawaii County law banning new genetically engineered crops on the Big Island is invalid. 

Similar to Kauai’s Ordinance 960 (formerly Bill 2491), U.S. Magistrate Judge Barry Kurren’s ruled the Hawaii County law is invalid because it is pre-empted by both state and federal law.

“This is something to be thankful for,” one of the plaintiffs’ attorneys, Margery Bronster, said of the ruling. “This is really important to some of the farmers. It has a big impact on their lives and their livelihoods.”

The lawsuit argued that some of the law’s effects would include blocking flower-growers seeking a genetically-engineered variety of anthurium that would withstand plant pests and cattlemen who want to grow GMO feed to avoid having to send cattle to the Mainland for fattening up before slaughter.

The ruling mirrored what Kauai’s law recently underwent.

Kauai County Councilman Gary Hooser, who co-introduced the Kauai measure along with Councilman Tim Bynum, said he was not surprised Kurren interpreted state law similarly. 

“However, in neither instance has he taken into account the state constitution and the public trust doctrine,” Hooser said. “Neither has he taken into consideration that the State Health Department presently holds regulatory authority over GMO permitting and state law also expressly grants counties the authority to enforce health department regulations.”

Therefore, Hooser said, the state has already delegated authority to the counties to enforce existing GMO regulation, and Kurren’s pre-emption decision contradicts existing law.

The County of Kauai, meanwhile, is appealing the judge’s Kauai ruling.

In a written statement, Mark Phillipson, spokesman for Syngenta on Kauai, said the judge’s ruling recognizes the importance of diverse, modern agricultural practices in the state.

“All forms of modern agriculture are critical to preserving our links to our past heritage while moving the industry forward,” he wrote. “We believe any laws governing agriculture should remain at the state level for consistency.”

On the Big Island, The Hawaii Floriculture and Nursery Association, Hawaii Papaya Industry Association, Big Island Banana Growers Association, Hawaii Cattlemen’s Council, Pacific Floral Exchange, Biotechnology Industry Organization and various farmers sued to invalidate the Hawaii County ordinance that went into effect in December banning new cultivation of any genetically modified crops and testing of GMO crops unless in enclosed spaces such as greenhouses. The ordinance allowed for exemptions for papayas.

Bynum said the bottom line is that three of Hawaii’s four counties have expressed concerns about the research practices of the biotech seed industry. 

“It’s an issue that won’t go away,” he said. “We need to fight it and work on it wherever we can.” 

Hawaii County Corporation Counsel Molly Stebbins said the decision is disappointing but not surprising given the Kauai ruling, and that Hawaii County is evaluating whether to appeal.

Earthjustice attorney Paul Achitoff, who represents the Center for Food Safety and organic farmers, also criticized the judge’s ruling.

“We believe he was wrong in the Kauai case, and he’s equally wrong in this case,” Achitoff said. 

The Kauai case is before the 9th U.S Circuit Court of Appeals.

Kurren is also the judge who is handling a lawsuit against Maui County’s new law banning the cultivation of GMOs.

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