Charter amendment or ordinance?

LIHUE — A group of Kauai residents has been busy collecting signatures in an effort to get its proposed charter amendment aimed at regulating the island’s genetically modified crop industry on the Nov. 4 ballot.

Michael Shooltz said his group, Kauai Rising, not only reached the 2,037 required signatures, but nearly doubled it by collecting 4,026.

“It’s time to take the next step. It’s time to let the people decide,” he told the council. “This charter amendment offers them that opportunity.”

The problem: Kauai Rising’s proposal may not be a charter amendment at all.

The Kauai County Council spent Wednesday morning discussing whether it is in fact what it was introduced as — a charter amendment — or rather an ordinance masked as one. The two types of citizen initiatives differ greatly, most notably because of the number of signatures required to put each one to a vote.

While it takes only 5 percent of registered voters to petition a charter amendment, 20 percent is required to put forth an ordinance or referendum.

Council Chair Jay Furfaro put the issue at hand plainly, saying the County Attorney’s Office needs to figure out if the proposal is a “cat or a dog.”

That question — as well as how to go about getting the answer to it — took up a large portion of the council’s morning. While petitioners of the proposal believe it fits the criteria of a charter amendment, certain council members are not convinced.

“I have read the proposed amendment and I find it very creative and very thoughtful. And I think there are some very excellent proposals in here,” Councilwoman JoAnn Yukimura said. “I don’t believe it is a charter amendment.”

In addition to shifting the burden of proof to the companies to prove that their operations on Kauai are safe, the proposal would shift regulation and monitoring costs to the industry itself. “It allows commercial agricultural entities to continue their current operations only after submitting an application, application fee, and acceptable proof to a qualified panel of experts that their operations are not contaminating the people, air, land, water, or other organisms beyond the boundaries of the property they control,” states the amendment’s summary.

It would also create a County Office of Environmental Health to implement and enforce the amendment, as well as establish civil and criminal penalties for noncompliance, including fines up to $25,000 per day, per violation.

Councilman Mel Rapozo said that while creating a new department does fall within charter amendment guidelines, he has “no doubt” the majority of the proposal, specifically implementing penalties, is legislative. Moving it forward as a charter amendment, he said, would, among other things, cause some “potentially false hopes” on the part of the petitioning committee.

Rapozo suggested Kauai Rising begin gathering the estimated 6,000 additional signatures required for an ordinance.

“We’re 0-2 on the charter amendment scoreboard, this county, in recent years,” he said, referring to two voter-initiated amendments that were passed and later invalidated by a Hawaii court . “I don’t want to be 0-3. And the costs that come with those loses are not cheap.”

The council voted 6-1 to received the proposal, which allows the county clerk to begin validating signatures. Councilman Ross Kagawa cast the lone dissenting vote.

Additionally, Furfaro has requested that the County Attorney’s Office provide a legal opinion about whether it is a charter amendment or an ordinance — or, as he put it, “a cat or a dog.”

Deputy County Attorney Mona Clark said the issue is that Article 24 of the Kauai County Charter “anticipates that what will be submitted will fall within the parameters” of a charter amendment. She assured the council she would review the proposal and provide a legal opinion within a week.

Yukimura said it ultimately comes down to a threshold question. She expressed concern about how the county clerk’s office could move forward with verifying signatures without knowing what the proposal actually is, or how many signatures are required.

Although deferring the matter for one week to allow time for a legal opinion was discussed, the council voted to receive the proposal. The clerk has until June 27 to finish verifying petition signatures.

Should the county attorney determine that the proposal does not qualify as a charter amendment, Kauai Rising would have either amend the proposal to fit the criteria or collect additional signatures.

Rapozo said his worry is that that history would repeat itself.

“I don’t want want to get into a situation like we did in the past where the county had to sue the county because the council didn’t have the grapes to stop an invalid amendment — Did I say ‘grapes?’ I’m sorry — the courage to stop an amendment before putting it on the ballot,” he said.

Those behind the proposed amendment say it is more comprehensive than the recently passed County Ordinance 960 (formerly Bill 2491), which calls for Kauai’s largest agricultural companies, as well as Kauai Coffee, to disclose their use of pesticides and genetically modified crops.

The petition says its goal is to protect the community and environment from the “hazards of GMO agriculture, toxins and testing.”

Laurie Yoshida, spokeswoman for DuPont Pioneer, said the like Ordinance 960, the proposed amendment is “flawed and would be invalid.”

“It arbitrarily targets our industry with burdensome and baseless restrictions on farming operations by attempting to regulate activities over which counties in Hawaii have no jurisdiction,” she wrote. “These activities are already regulated by governmental agencies under state and federal laws.”

The County Attorney’s Office is expected to present its findings related to Kauai Risings related to Kauai Risings charter amendment petition during an executive session Wednesday.

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