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Agribusinesses Challenge Kauai’s GM Crop Restriction Ordinance in Federal Court

If a majority of voters in either California or Washington state had supported labeling foods containing genetically modified ingredients, agribusinesses would likely have responded with a federal lawsuit against one or the other state.

Now that lawsuit – or much of it – is coming together in the U.S. District Court in Hawaii, but it’s been filed only against the County of Kauai over local Ordinance 960 scheduled to take effect on Aug. 16, 2014.

Agribusiness attorneys plan to get an injunction against the ordinance taking effect before that date on the grounds that the county council does not have the authority to ban crops grown from genetically modified seeds or with common pesticides from certain buffer zones.

They also argue that the county council overstepped its bounds by requiring public disclosure of confidential commercial information likely to expose property owners to “risks of corporate espionage, vandalism, and environmental terrorism.”

Finally, they point to the long use of pesticides and GM crops in Hawaii, practices long regulated by state and federal governments. The plaintiffs’ attorneys say their clients cannot be banned from these uses “without good cause or just compensation.”

The Kauai County Council ordinarily is represented by the county attorney, but that office has already said it cannot defend the “Stop Poisoning Paradise” ordinance without extra money to hire outside counsel. Before it even accepted the summons from Syngenta Seeds Inc., Pioneer Hi-Bred International Inc., Agrigenetics Inc., and Syngenta Hawaii LLC, the county council had to come up with $75,000 for the county attorney to find someone to defend them in the case.

The 69-page complaint was filed against the county in Hawaii federal court on Jan. 10. It’s not clear who will be defending the county, but the agribusinesses have enlisted one of Hawaii’s best-known law firms, Alston Hunt Floyd & Ing, and one of the largest in the Western U.S., Holland & Hart, along with Bronster Hoshibata, led by former Hawaii Attorney General Margery S. Bronster.

Their complaint asserts that the local ordinance is invalid under both the U.S. and Hawaii constitutions and even the county’s own charter. They say Kauai Mayor Bernard Carvalho recognized that when he vetoed the ordinance on the advice of his legal counsel.

A group working to shore up defense of the ordinance is coming together. Earthjustice and the Center for Food Safety have formally intervened in the federal case “to defend the County of Kauai’s 2013 pesticide law from a challenge by chemical companies.”

“The spectacle of four multi-billion-dollar multinational chemical companies suing for the right to continue spraying Kauai’s residents with acutely toxic chemicals, and to keep what they spray and when they spray it a secret, is shameful,” said Earthjustice managing attorney Paul H. Achitoff.

Warmups in the case continue with summons, corporate disclosures and intervenor enlistments, all continuing before U.S. Magistrate Judge Barry M. Kurren, who has served on the federal court in Hawaii since 1992.

Hawaii’s fertile soils are said to have attracted more field trials of genetically modified crops than most places, including for corn, soybeans, cotton, potatoes, wheat, alfalfa, beets, rice, safflower and sorghum. In addition, Hawaii university researchers are credited with saving from the ringspot virus the state’s own variety of papaya, which is again being exported to Japan.

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