LIHUE — A release of the Office of the County Attorney’s confidential legal opinion on the final draft of Bill 2491 is one of the reasons why an outside firm is being sought to defend it in federal court, County
LIHUE — A release of the Office of the County Attorney’s confidential legal opinion on the final draft of Bill 2491 is one of the reasons why an outside firm is being sought to defend it in federal court, County of Kauai officials said.
That Oct. 24 opinion, penned by Deputy County Attorney Mauna Kea Trask and stamped “DO NOT DISCLOSE” in large, red letters, was released publicly a week later by Mayor Bernard Carvalho, Jr. along with an announcement of his bill veto.
“I think the best response is that he was hopeful that, by releasing the opinion, the veto would not be overridden and the lawsuit would be avoided altogether,” County spokeswoman Beth Tokioka wrote in an email.
The 69-page opinion was critical of the bill and asserted that opponents could use a variety of legal arguments to fight the law in court.
It asserted, in part, that bill opponents would use the state’s Right to Farm Act, which limits the circumstances under which farming operations may be deemed a nuisance, to challenge Bill 2491.
“By regulating farming operations as nuisances, and under such legal authority, the County is adopting a contradictory policy to what the state Legislature has adopted,” Trask wrote. “The county will thus be hard pressed to argue that they can treat farming operations as nuisances and rely on nuisance law to regulate what the state Legislature has clearly stated is not a nuisance.”
Another problem, Trask wrote, is the possible preemption of Bill 2491 by the Hawaii Pesticides Law, which creates a complex regulatory structure to regulate pesticides.
“Some sections of Bill 2491 … clearly conflict with the Hawaii State Pesticide law by prohibiting what the state otherwise allows,” Trask wrote. “Other sections would frustrate the uniformity and state-wide application of the law … through the enactment of additional qualifying regulations.”
All of these arguments, along with others highlighted by Carvalho in his decision to veto the bill, are outlined in a lawsuit filed in U.S. District Court against the county by Syngenta Seeds, Inc.; Syngenta Hawaii, LLC; Pioneer Hi-Bred International, Inc.; and DowAgroSciences affiliate Agrigenetics, Inc.
“The office consulted with the Office of Disciplinary Council for guidance on whether it was appropriate for them to defend the new law,” Tokioka wrote in an email. “After consultation, the County Attorney’s Office determined that it was ethically advisable to disqualify itself and declare a conflict.”
After a county review committee rejected the only offer it received for pro-bono representation from former Kauai Bar Association President Teresa Tico and Center for Human Rights and Constitutional Law President Peter Schey, county officials said they would select special counsel from a list of 17 pre-qualified legal firms.
The prescribed date for the county to respond to the lawsuit was Friday, but as of press time, no selection was known to be made.
