There was no clear consensus this week on how a federal judge's ruling against a Kauai County pesticides and bioengineered crops bill would affect a Nov. 4 vote on an initiative measure calling for a moratorium on genetically modified crops and activities in Maui County.
Members of moratorium proponent the SHAKA Movement maintained that the judge's ruling would not have an impact on the Maui measure because it aims to halt genetically engineered operations and practices in Maui County until bioagriculture companies can prove the safety of the crops and farming them.
The Kauai measure is a pesticide disclosure and buffer zone law, and it is different from what's proposed for Maui, according to members of SHAKA, which stands for Sustainable Hawaiian Agriculture for the Keiki and the Aina.
"The judge ruled that the state's existing pesticide regulations pre-empt any regulation of pesticides at the county level by a mechanism called 'implied pre-emption,' " the SHAKA group said in an email. "That may be true for pesticides, but it does not apply to GMOs specifically. The state of Hawaii has no statutes, laws or regulations that are specific to genetically engineered crops. Therefore, the state cannot be said to be regulating GE crops."
SHAKA added: "In this vacuum of any state regulation of GE crops, Maui County cannot be barred from taking it upon itself, the protection of its citizens, from the reasonable public health and environmental threat presented by the cultivation and open field experimentation of GE crops.
"Since there are no state or county regulations on GMOs, the SHAKA Movement stands with the over 20,000 Maui County citizens who believe that is it responsible to investigate and regulate the GMO operations to ensure environmental and public safety for current and future generations as mandated by the Public Trust Doctrine in our Hawaii State Constitution."
On Monday, U.S. Magistrate Judge Barry Kurren ruled in favor of four seed companies seeking to stop Kauai's new law from going into effect in October. Syngenta Seeds, DuPont Pioneer, Agrigenetics Inc. (doing business as Dow AgroSciences), and BASF Plant Sciences sued for a permanent injunction, arguing that the ordinance unfairly targets their industry.
Kurren's ruling agrees that the ordinance is pre-empted by state law.
Mark Sheehan, one of five Maui residents who began SHAKA's voter initiative, said in a phone interview from California on Wednesday that he expects a legal challenge from biotech companies if the moratorium bill is approved by voters.
"I think Monsanto and the other biotechnology companies will challenge everything everywhere," he said.
The companies have a $1 billion industry to keep afloat, so they would challenge whatever threatens their business, he said.
Although Sheehan said that he had not read the judge's ruling, he said he was "disappointed in the decision."
Thousands of people would not have signed the Maui petition if they believed the federal government tested the chemicals being used by biotechnology companies, he said.
He added that the companies that challenged the Kauai law in court "are not being good neighbors" in not wanting to disclose their pesticide use.
Sheehan said that out of the 85,000 chemicals being used by biotechnology companies, only 600 have been tested. He added that the federal Environmental Protection Agency admitted it does not have the ability to test the combinations of those chemicals being used together.
Earlier this year, SHAKA gathered 9,062 valid signatures, surpassing the 8,465 needed for the initiative to be considered by the Maui County Council for approval. The council in July declined to take action on the measure after hours of public testimony from hundreds of people both for and against the bill.
County Council Policy and Intergovernmental Affairs Committee Chairman Riki Hokama recommended allowing the measure to go to the ballot without council approval after receiving closed-door legal advice from Corporation Counsel Patrick Wong.
Hokama told committee members that he had "legal concerns" about the bill's structure and about it not being in compliance with the Maui County Charter.
The council's decision not to take action on the initiative measure puts it on the Nov. 4 general election ballot.
At a Monday news conference in front of Honolulu Hale on Oahu, state mayors weighed in on the federal decision.
Mayor Alan Arakawa said the recent ruling would be "another clue for the public to look at" when people vote on the measure. He added that the decision would "have an impact" on Maui County voters, but didn't say how.
Arakawa said that the county is trying to provide the "best information possible" to residents as they prepare to vote.
County attorneys are reviewing the matter.
Arakawa told news website Civil Beat on Monday that he would publish an advisory to Maui residents if the county determines that the ballot initiative may be illegal.
During the conference, Arakawa said: "We want to do it right the first time."
Tom Blackburn-Rodriguez, media coordinator for the Citizens Committee Against the Maui County Farming Ban, said that the group has been monitoring the Kauai case closely and is "pleased with the court's ruling."
He added that the committee, made up of farmers, ranchers, residents, scientists, lawyers and those of "all walks of life," would consult with attorneys to see how the recent court decision impacts what he called the "ill-conceived and flawed Maui County farming ban initiative."
The citizens' committee is made up of 1,500 individuals and is growing, he said.
Maui Council Council Member Elle Cochran, who has backed the SHAKA Movement and has introduced her own anti-GMO bill modeled after the Kauai bill, said in an email statement:
"I stand by Kauai County's effort to maintain home rule and am determined to compel the state of Hawaii to do its job in protecting our people and our environment from any potential harm. I believe that I am still the only Maui County Council member that openly supports the fight for disclosure and transparency requirements for these chemical and biotech companies."
Cochran's bill is separate from the citizens' initiative. Her measure has been heard in the council's Policy and Intergovernmental Affairs Committee, where it remains.
Cochran added: "This is only one judgment (in the Kauai case). I am sure, as it is with most contentious issues, (that) we will have a long road ahead of us."
In the wake of the federal ruling, Cochran said that she's considering the submission of pesticides disclosure legislation to the state Legislature and to the Hawaii State Association of Counties for possible inclusion in its legislative package of bills.
She said that she has "high hopes that I can receive support from my fellow members to pass it through."
Carol Reimann, Monsanto Hawaii's community and government affairs manager, said that since her company does not do business on Kauai, it declined to comment on the Kauai ruling.
The Hawaii Crop Improvement Association, which represents various agricultural seed industries in Hawaii, issued a statement through its executive director, Bennette Misalucha.
On the Kauai ruling, Misalucha said: "This is a major victory for Hawaii's agricultural industry and for farmers everywhere who use accepted and standard farming practices. We are pleased the federal judge has validated that the state of Hawaii already has a comprehensive framework in place for addressing the application of restricted-use pesticides. The proposed Kauai County bill was therefore unnecessary."
* Melissa Tanji can be reached at email@example.com.