LIHU‘E — A group of Waimea residents have filed suit in 5th Circuit Court against Pioneer Hi-Bred and landowner Gay & Robinson for alleged inaction to control erosion and pesticide-contaminated dust from its GMO test fields.
The suit, filed May 16 by Honolulu attorneys P. Kyle Smith and Gerard A. Jervis, represents 17 individuals from neighboring farms and communities. They are seeking an injunction against the use of suspected toxic chemicals and damages.
The complaint is separate from the mass-action suit filed in 5th Circuit last December by Smith and Jervis on behalf of 194 individuals against the same defendants. Attorneys representing Pioneer Hi-Bred and Gay & Robinson have since had a motion granted to move the case to federal court.
“We filed a motion for remand to take the case back to state court and it will be heard on July 17,” Smith said. “It was removed under the Class Action Fairness Act.”
Neither suit is a class action, but the attorneys said it was removed under provisions of mass joinder. The section details criteria of mass action complaints.
If the federal case is remanded to state court the attorneys said they would move to have the two cases litigated together. They said it is in the best interest of the plaintiffs to have the case heard on Kaua‘i.
“I think it would be fair to have litigation in Kaua‘i,” Jervis said.
“The plaintiffs can monitor and participate on motions. Removing it to Honolulu is prohibitive from a cost standpoint.”
The attorneys expect the defense to respond to the second case this week. At that point they expect similar motions to request the case be moved to federal court.
The suits claim that fugitive airborne dust exposure from restricted-use pesticides presents unreasonable environmental risks including human health, the Waimea River, the coastline and coral reef.
The plaintiffs are seeking damages against Pioneer Hi-Bred International for failing to control dust.
The suit claims dust is transporting toxic chemicals used on a daily basis and that Pioneer Hi-Bred is conducting open-air testing of genetically modified crops at its Waimea Research Center.
“We operate our facilities on the islands with the highest standard of safety and environmental responsibility and we plan to vigorously defend our case,” said Cindy Goldstein, business and community outreach manager for Pioneer Hi-Bred.
The plaintiffs are seeking landlord liability damages against Gay & Robinson Inc. and its leasee, Robinson Family Partners, which in turn has subleased to Pioneer since 1998. The suit alleges the landowner has knowledge of the dangers imposed by land practices.
Gay & Robinson Inc. is a Hawai‘i corporation, and Robinson Family Partners is a general partnership registered in Hawai‘i.
Pioneer-Hi Bred is a DuPont business and an Iowa corporation.
The suit claims the fields in question are susceptible to wind and water erosion from years of sugar cane growing.
It claims current damage is in excess of historic agriculture practices.
The history of the case began in 2000, when residents issued a petition. Pioneer responded that it would take steps to minimize dust from its fields.
The suit claims that Pioneer continues to be in violation of grubbing and grading land standards and stockpiling operations in accordance with Kaua‘i Ordinance 808 and the Hawai‘i Pollution Control Act. It claims Pioneer failed to implement its conservation plan to minimize erosion after receiving an agricultural exemption for its Waimea Research Center in 2002.
A Kaua‘i County engineer’s report in March 2011 noted that Pioneer failed to keep its fields in a condition that would prevent damage by sedimentation to streams, watercourse, natural areas or other properties. The residents claim that dust with chemical smells continue to be detected in the community.
Local corn and taro farmers mentioned in the complaint express concern about pesticide effects on crops and the honey bee population. Residents point to home and property devaluation and are seeking damages including restoration costs.
The suit is seeking an injunction against Pioneer to cease using suspected chemicals until the potential harm is determined and the use is in compliance with state and local laws. It demands that Pioneer investigate actual risks to the community and offer proper warning.
• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.
