Yay or nay?

LIHUE — Kauai Rising’s proposed charter amendment aimed at regulating the island’s genetically modified crop industry may not be a charter amendment after all.

And whether it will end up on the November ballot is questionable.

In a legal opinion released Wednesday by the County Clerk’s Office, the Office of the County Attorney said the group’s petition — which has been revised and recirculated since being rejected by the clerk in light of a technical error — still does not meet the requirements of a charter amendment.

Instead, it is local legislation, an initiative, introduced or masked as an amendment, according to Deputy County Attorney Mona Clark.

Clark told the council that she was “very concerned” with the revised document, submitted on June 13.

“I was on vacation during the ensuing week and said, ‘What is being submitted is essentially an initiative with important legal consequences,’” she said. “The Kauai Rising group made a logistical decision, it appears, to submit something that was not a charter amendment as a charter amendment. It’s an unfortunate situation.”

In somewhat of a bizarre outcome, the Kauai County Council voted 3-3 to receive Kauai Rising’s proposal. The split vote means it was neither received nor rejected, but will be reconsidered by the full seven-member council during its next scheduled meeting July 23.

Council members Tim Bynum and Gary Hooser voted in support of receiving the petition, which would have allowed the county clerk to begin verifying signatures for a second time. Council members Mason Chock, Jay Furfaro and Ross Kagawa voted against the motion to receive.

Councilman Mel Rapozo was not present and did not cast a vote.

Despite her concerns that the proposal was an initiative and could face legal challenges, Councilwoman JoAnn Yukimura voted silently, which counted as an affirmative vote with the motion to receive.

Yukimura said the issue is not whether the Kauai Rising proposal is good or bad, but whether the rules are being followed for getting it on the ballot.

Everything about it — from its length to penalties and methods of regulation — “shouts out” that it is not what it has been submitted as, she said.

“I don’t know at this moment how I’m going to vote,” she said prior to the roll call vote. “I’m trying to share my thought process on this. And I have to say that substantively this is a bill for an ordinance and I am fearful that it will be invalidated.”

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. The difference is 2,037 signatures versus 8,147.

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

As they did in previous meetings, Hooser and Bynum voiced that decision is not one for the council to make, but rather a court.

“This is the people’s path … And for the council to interject itself as the judge and jury over whether or not the language is appropriate or inappropriate, legal or illegal, I think is probably illegal,” Hooser said. “Certainly it’s inappropriate.”

It should be up to the people of Kauai to vote on Nov. 4 whether they believe the proposal is good for the county, he said.

Bynum said the appropriate thing to do is continue the democratic process by receiving it and starting the signature verification process.

Councilman Ross Kagawa disagreed, saying facts simply cannot be ignored.

“Today’s a day for us to do the responsible thing and treat it as it is,” he said. “It’s an initiative.”

Councilman Mason Chock voiced similar concerns.

“I support the will of what’s being said and what’s been worked on here, but we want to put something forward that’s going to work for us to administer,” he said.

Several people submitted testimony urging the council to receive the petition. Among them were several representatives of Kauai Rising, including Michael Shooltz.

Shooltz said his group collected thousands of signatures, not once but twice, acted in good faith and followed all the guidelines provided by the county.

“I urge you to receive it, to honor the democratic process, to let the 7,500 signatures … be heard,” he said.

During its first petition drive, Kauai Rising reportedly collected more than 4,000 signatures. Those signatures were never verified because Kauai County Clerk Ricky Watanabe rejected the petition, citing the group’s failure to use the proper form.

In its second attempt, Kauai Rising says it collected another 3,030 signatures within a condensed 18-day timeframe.

In addition to shifting the burden of proof to the agrochemical companies to prove that their operations on Kauai are safe, the proposal would shift regulation and monitoring costs to the industry itself. 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.

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.

Chock asked Shooltz what his group planned to do if the council voted not to receive the petition, or if it was later rejected by the county clerk’s office.

“Our intention is to stop the poisoning somehow,” he said. “In our minds that’s the only driving force — to stop the poisoning on this island. So if this isn’t successful we’ll keep on going.”

The proposed amendment has been made the special order of the day for the July 23 council meeting, when Rapozo is expected to cast a seventh, and possibly deciding, vote.

At a previous meeting, Rapozo said he was worried that history would repeat itself and the county would find itself in another situation where it sued itself because the council didn’t stop an invalid amendment before putting it to a public vote. At that time, however, he voted to receive the proposal.

Rapozo could not be reached for comment Wednesday.

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