GMO:  Seed companies are challenging Kauai County’s Ordinance 960

4 nonprofits join defense of GMO law against suit

Seed companies are challenging Kauai County’s Ordinance 960


By Rosemarie Bernardo

Four nonprofit organizations were allowed to join Kauai County in defending a new ordinance that regulates pesticide use and genetically modified crops against a federal lawsuit by seed companies challenging its legality.

U.S. Magistrate Judge Barry Kurren on Monday granted the motion to allow Ka Makani Ho‘opono, the Center for Food Safety, the Pesticide Action Network North America and the Surfrider Foundation to intervene in the suit. Syngenta Seeds, DuPont Pioneer, Agrigenetics Inc., doing business as Dow Agrosciences, and BASF Plant Sciences LP are seeking a permanent injunction against Ordinance 960.

Councilman Gary Hooser, who co-introduced Bill 2491 (which became Ordinance 960) with Councilman Tim Bynum, attended the hearing with a group of Kauai residents.

The organizations that support the new ordinance are being represented by the Center for Food Safety and Earthjustice.

Earthjustice attorney Paul Achitoff said he is pleased with the judge’s decision.

“I’m glad my clients will have their day in court,” he said. “They deserve it.”

Attorney David Minkin, representing the county, had no objections to the groups’ request to join the suit.

During the hearing, attorneys representing the seed companies said participation by the intervenors is not necessary because the county already has counsel representing all residents of Kauai.

Achitoff said participation from the groups is vital. A majority of members in the organizations residents of west Kauai and claim they are directly affected by pesticide exposure due to constant spraying of pesticides at fields near their homes.

“They’re on the front lines,” Achitoff said after the hearing.

Achitoff’s clients sought to join the lawsuit because of a lack of confidence in the county to defend against the lawsuit, alleging the county does not support the new law. The Council passed the ordinance over the veto of Mayor Bernard Carvalho, who called the measure flawed.

Barring any court intervention, the law will be implemented by mid-August.

The law requires large agricultural operations to disclose the type of pesticides they spray on their fields and their use of genetically modified organisms. Companies must also establish buffer zones near schools, medical facilities, dwellings, parks, public roadways, shorelines and waterways.

At Monday’s hearing, attorney Margery Bronster, who represents DuPont Pioneer, recommended the nonprofit organizations take part in the lawsuit in an “amicus position,” a nonparty to provide views on issues relating to the complaint.

Kurren ruled the groups’ participation in the lawsuit would be beneficial.

“Having the perspective of the intervenors would frankly be helpful,” he said.

On Monday, attorneys for the plaintiffs filed two separate motions seeking partial summary judgments on several claims, requesting Bill 2491 be held invalid. Some of the claims include allegations of the county violating the state’s open-meeting Sunshine Law concerning an executive session held on Nov. 15, relating to the selection of a new council member to fill a vacancy after former Vice Chairwoman Nadine Nakamura resigned to become managing director.

According to the complaint, the county “improperly deprived the public of the opportunity to participate in and to scrutinize the government process that led to the selection of Councilman (Mason) Chock” to replace Nakamura.

The biotech companies also claim pesticide use is regulated by state and federal law, pre-empting Bill 2491.

A scheduling conference hearing is set for Thursday.