Lawsuit filed

LIHUE — It was a move many expected and one the industry itself had promised.

On Friday, three of Kauai’s biotech seed companies filed a federal lawsuit aimed at blocking implementation of County Ordinance 960 (formerly Bill 2491) related to pesticides and genetically modified crops.

Syngenta, DuPont Pioneer and Agrigenetics Inc., a company affiliated with Dow AgroSciences, filed the complaint in U.S. District Court in Honolulu. It charges the county with violating the United States and Hawaii constitutions, multiple federal and state laws and the Kauai County Charter.

Ordinance 960, according to the complaint, “irrationally prohibits Plaintiffs from growing any crop, whether genetically modified or not, within arbitrarily drawn buffer zones inapplicable to other growers, and restricts Plaintiffs’ pesticide use within those buffer zones.”

“The Bill also imposes unwarranted and burdensome disclosure requirements relating to pesticide usage and GM crops that compromise Plaintiffs’ confidential commercial information and unnecessarily exposes Plaintiffs to risks of corporate espionage, vandalism and environmental terrorism,” states the complaint.

BASF and Kauai Coffee are also affected by the new law but did not join the suit.

The plaintiffs say their seed production activities could not have proceeded without an exhaustive review of the potential health, safety and environmental risks.

Both federal and state agencies have “conclusively determined” that GM plants present no such risk, and that the pesticides used present no unreasonable risk to the environment or public health, according to the complaint.

“Thus, the ostensible purpose of Bill 2491, to protect the ‘health and natural environment’ of Kauai and its people from the use of pesticides and GM crops, is already addressed by the comprehensive state and federal regulatory programs,” states the complaint.

The companies have asked the court to “declare Bill 2491 invalid and enjoin the County from enforcing it.”

Gary Hooser, who co-introduced the bill in June, described the lawsuit as unfortunate but not surprising.

Instead of being good neighbors, Hooser argued the companies have chosen not to honor and respect the democratic process.

“Why they don’t want to honor our local government is beyond me,” he said on Saturday. “Unless they are insisting they have something to hide.”

Hooser said the county is not after company formulas or trade secrets, but rather basic disclosure and buffer zones.

“They threatened all along,” he said. “These companies do not want a little community like ours setting the rules. They’re not used to that. They’re used to setting the rules.”

The council passed Bill 2491 by a 6-1 vote Oct. 16, only to have it vetoed by Mayor Bernard Carvalho Jr. on Halloween Day. The council later overrode the mayoral veto.

In a statement Saturday, Carvalho said the county has been told repeatedly that it would face a legal challenge.

“Once we have been officially served, we will be soliciting pro-bono legal services in accordance with State procurement law,” he wrote.

“It will be our intent to complete that process as quickly as possible, while insuring that the County retains the most qualified special counsel available in this matter. Our ability to move forward on implementation of the various components of Ordinance 960 will be dependent on the court’s ruling relative to the requested injunction.”

In the meantime, Carvalho said the county has been assured that the Good Neighbor Program that has been put into place via a voluntary agreement between the State Department of Agriculture and the four seed companies currently operating on Kauai will continue without interruption.

The voluntary program went into effect Dec. 1 and calls for the same companies to disclose their use of restricted use pesticides and implement buffer zones. But bill proponents have said the state program is insufficient and does not actually require the companies to do anything.

Syngenta and Dow released identical statements Saturday regarding the 69-page complaint.  

“The ordinance is invalid,” they said. “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. These activities are already regulated by governmental agencies under state and federal laws.”

In October, attorneys with Earthjustice and the Center for Food Safety vowed to defend the county law in court if necessary. Both stood by their offers Saturday.

“Kauai’s ordinance is a sound and well-crafted law,” George Kimbrell, a senior attorney with the Center for Food Safety, said in a statement. “The industry’s challenge is without merit, and we will vigorously defend it.”

Paul Achitoff, managing attorney for Earthjustice, said he is also looking forward to defending Kauai and is “confident justice will prevail.”

“The chemical industry has been using bullying and misinformation all along to try to derail this law,” he said in a statement.

“They consider their impacts on the health of Kauai’s residents as collateral damage,” he said.

The law, slated to take effect Aug. 16, mandates disclosure of pesticide use, establishes buffer zones around sensitive areas and requires the county to complete a health and environmental impact study.

In the complaint, the companies said that Kauai’s temperate climate provides them with the “invaluable opportunity to triple or quadruple the pace of development of GM crops by producing seed year round.”

“This advantage is crucial to Plaintiffs’ success in the U.S. and international seed markets,” the complaint states.

The plaintiff’s said in the complaint that they are “likely to prevail on their constitutional and statutory claims” against the county and “pray” the court declare Bill 2491 as invalid and award them “reasonable attorneys’ fees and costs.”

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

• June 20 — Bill goes public.

• July 26 — The Hawaii Crop Improvement Association, Hawaii Farm Bureau Federation and the Kauai County Farm Bureau launch “Save Kauai Farms” campaign to defeat 2491.

• July 31 — More than 1,000 people show up at the bill’s public hearing, 227 people testify.

• Sept. 5 — The council meets with county attorneys to discuss legal aspects of the bill.

• Sept. 8 — Thousands of local residents — some estimates as high as 4,000 — pour into the streets for “Mana March” in support of the bill.

• Sept. 23 — Gov. Neil Abercrombie announces his voluntary disclosure plan.

Sept. 27-28 — After a 13-hour meeting, the council’s Economic Development (Agriculture) Committee, having defered twice already, votes 4-1 to pass an amended version of the bill, sending it to the full council.

• Oct. 11 — Council Vice Chair Nadine Nakamura announces she would be leaving her seat to work as county managing director.

• Oct. 16 — The council approves the amended bill 6 to 1 at 3:35 a.m., nearly 19 hours after the meeting began.

• Oct. 31 — Carvalho vetoes 2491 and releases the county attorney’s legal opinion on it.

• Nov. 1 — The Kauai Police Department begins investigating threats against the mayor related to his veto.

• Nov. 1 — Nakamura takes over as the county’s managing director, leaving the council with six members.

• Nov. 14 — The council votes 4-2 to recess the special meeting, allowing time to select a seventh council member.

• Nov. 15 — The council appoints Mason Chock as the seventh council member, replacing Nakamura.

• Nov. 16 — Chock casts a deciding vote in favor of overriding the mayor’s veto on his first day on the job. Bill 2491 passes.

• Jan. 10 — DuPont Pioneer, Syngenta and Agrigenetics Inc. file a lawsuit against the County of Kauai in U.S. District Court in Honolulu.