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Lawsuit Lawsuit filed

Pioneer, Syngenta, Dow ask court to declare new law invalid

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Posted: Sunday, January 12, 2014 2:00 am

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.

© 2016 Thegardenisland.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Welcome to the discussion.


  • notahippi posted at 8:39 pm on Wed, Jan 15, 2014.

    notahippi Posts: 531

    I don't know how anyone could possibly want to eat or feed their family w/food that has had poisons and whatever else put into the very DNA of the seed....(we are not talking about grafting) and then refuse to label their products.......scary....

    My whole life I dreamed that Hawaii's would be the # 1 agriculture state....and our land would be used to grow healthy food instead of buildings .....I never imagined the horrifying things that could be done to the very seed of a plant....

    cloning animals for meat doesn't sound too ono either....

  • islandwide posted at 5:51 pm on Wed, Jan 15, 2014.

    islandwide Posts: 187

    So what now? What are you gonna do when you know what the GMO's are and pesticides being used? You'd keep the list in your wallet or purse? Distribute flyers, march in front of the grocery store, Costco, Times, Safeway, Foodland, about what's being sold? Get serious!! Its your choice!! Don't buy the darn thing!
    And don't worry about not having tourist coming here!! We have more tourist coming to Kauai than ever before...just look at the figures that HawaiianAir is posting!! The rental car agencies are out of cars to rent all the time!! The Seed Companies are breathing the same air, drinking the same water, shopping at the same stores, buying the same food that you buy to eat, thus don't think you'll be doing anything different in breathing air or drinking water...we're living on the same island. No more MOBS please!!

  • Moloaa Dreamin posted at 9:09 pm on Mon, Jan 13, 2014.

    Moloaa Dreamin Posts: 21

    Kauai stand firm! These chemical companies need to leave the island and stop poisoning the land.

  • kauaibarefootnative posted at 8:27 pm on Mon, Jan 13, 2014.

    kauaibarefootnative Posts: 6

    Despicable. They "pray" rofl... the only praying they do is to Satan. What a poor excuse for human beings. Pretending they care, deceiving good people, and poisoning everyone. There's a special place for them on the right side of the throne... in hell.

  • DaTruthHurts posted at 5:48 pm on Mon, Jan 13, 2014.

    DaTruthHurts Posts: 79

    @kauaiboy Your comment of no seed gets shipped out is 100% wrong, you have no clue what you are talking about.

    @rakelashanti If you don't want to visit here it is your choice, But you are missing out. All of those against GMO are blowing claims way out of proportion.

    The amounts that they claim are being used is way over the actual amount. They should take a look at the state and county use numbers, but they aren't because state & county applications don't invole GMO's

  • rakelashanti posted at 6:57 am on Mon, Jan 13, 2014.

    rakelashanti Posts: 21

    Why would I want to vacation in toxic paradise, the word is getting out.

  • DaTruthHurts posted at 9:29 pm on Sun, Jan 12, 2014.

    DaTruthHurts Posts: 79

    Where is everybody?
    Not one comment.
    The mayor knew what he was doing but you didn't listen. Look now.

  • Eric posted at 4:53 pm on Sun, Jan 12, 2014.

    Eric Posts: 29

    This Bill/Law is fatally flawed, discriminatory, and unconstitutional. It attempts to regulate areas already occupied by State and Federal laws.

  • kapaa33 posted at 3:48 pm on Sun, Jan 12, 2014.

    kapaa33 Posts: 238

    Hooser argued the companies have chosen not to honor and respect the democratic process.

    What democratic process is he talking about? I never voted.

  • PeteAntonson posted at 2:52 pm on Sun, Jan 12, 2014.

    PeteAntonson Posts: 3150

    So glad to see this headed to a Federal Courtroom where cute little emotional propaganda techniques, like referring to the plaintiffs as "The Chemical Industry" and/or Hooser's "poor little us" whining, won't be worth a hill of beans!

  • outofhere posted at 12:26 pm on Sun, Jan 12, 2014.

    outofhere Posts: 664

    The world, that includes your $$ tourists are watching....Mayor Carvalho.

  • kauaiboy posted at 9:13 am on Sun, Jan 12, 2014.

    kauaiboy Posts: 334

    I honor Kauai for standing up to these corporate spin-master bullies, and look forward to a vigorous defense of Ordinance 960.

    "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.'" That's just swell, if you believe that GM crops are the best thing since sliced bread. On the other hand, their related food industries are fighting tooth and nail against GM labeling requirements. I guess allowing the populace to make an informed choice is not high on their agenda.

    Also, this statement indicates that they are "producing seed". What they are NOT telling us is that they are not shipping or selling ANY of the seed grown on Kauai! They are using huge amounts of island acreage to perform open-air experiments with various concoctions of restricted use pesticides which, if successful, they will produce and sell to make some serious profit.

    When will anyone get that what these companies are up to on Kauai is NOT agriculture in any commonly accepted definition of the word, but a COMMERCIAL enterprise, and that all the land they control should be taxed at the COMMERCIAL tax rate? Come on, Kauai Tax Department, you love slamming it to the rest of us; now do the right thing and tax this noxious land use accordingly.

  • maricarmen posted at 8:26 am on Sun, Jan 12, 2014.

    maricarmen Posts: 55

    This comes as no surprise alright as this is the latest ploy by the industry of the mega rich: sue, sue and sue. They are suing entire countries for their right to continue getting their billions at the expense of people's health. They are bullies and very dangerous. This is what happens when companies get so rich they can do anything they want. They do not have to be held accountable, or answer to the public anymore. They own the state and federal government. And when local legislation passes they sue and are pressing the federal govt to preemt these local laws. it is their politics that makes me boycott this industry when possible (but I am still one of their test subjects by living here) I hate bullies and it is very revealing. They know how bad it will be if they are made to say how much of their dangerous products they are using.

  • sgoold posted at 8:14 am on Sun, Jan 12, 2014.

    sgoold Posts: 477

    Thank you, Gary Hooser!!! The SEED companies, "The Bill also imposes unwarranted and burdensome disclosure requirements relating to pesticide usage and GM crops ..."

    KNOW GMO !!! We have a RIGHT to know about the food we eat and poisons in our water and land.


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