Judge invalidates county GMO law

Oversight of genetically modified crops in Hawaii remains the state’s kuleana, a federal judge ruled Wednesday when invalidating Hawaii County’s law restricting the use of transgenic plants.

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Oversight of genetically modified crops in Hawaii remains the state’s kuleana, a federal judge ruled Wednesday when invalidating Hawaii County’s law restricting the use of transgenic plants.

The ruling by U.S. Magistrate Judge Barry Kurren was in line with another decision he made in August overturning Kauai County’s law on pesticides and modified crops. In both, he found lawmakers intended the state to have broad oversight of agricultural issues in Hawaii.

“In light of the comprehensive statutes and the network designed to address statewide agricultural problems, the court concludes that legislative intent for an exclusive, uniform and comprehensive state statutory scheme on the precise subject matter addressed by Ordinance 13-121 preempts the county’s ban on genetically modified organisms,” the ruling said.

The law — adopted by Hawaii County Council a year ago — bannned open-air use and testing of GMOs with a few exceptions. Kurren ruled the law was only partially preempted by federal law.

Supporters of the law, which went into effect Dec. 5, 2013, said they weren’t surprised given the ruling in the Kauai case.

“We were playing chess with the big boys,” said County Councilwoman Margaret Wille, who spearheaded the anti-GMO legislation. “There’s a lot of power there and you can’t expect that they (biotech companies) don’t have a lot of influence.”

Wille, an attorney, said she was hoping for an appeal.

Molly Stebbins, county corporation counsel, said the county disagrees with the preemption argument but added no decision has been made yet on whether to appeal the ruling to the 9th Circuit Court of Appeals. The county has 30 days to make that decision.

The plaintiffs, who filed the lawsuit in June, included agricultural groups representing florists, banana and papaya growers, and ranchers. The Biotechnology Industry Organization, and isle farmers and ranchers Richard Ha, Jason Moniz, Gordon Inouye and Eric Tanouye also were listed as plaintiffs.

In addition to preemption, they argued the ban was not supported by the science of biotechnology and would harm farmers who could benefit from modified crops.

“I think it’s a step in the right direction and certainly was a favorable ruling for the farmers,” said Lorie Farrell, a coordinator for Hawaii Farmers and Ranchers United, which opposed the law. “And our reaction is maybe we can begin the conversation about food and farming and move forward in a positive direction.”

While supported by a large majority of testifiers, the law created sharp divides between pro-GMO farmers and scientists and those who oppose the use of biotechnology in agriculture.

Supporters of genetically engineered crops pointed to the success of the transgenic Rainbow papaya, developed by scientists to be resistant to the ringspot virus, while opponents cited fears about the widespread use of herbicide-resistant crops.

“Hawaii Island is a unique and important place,” said organic farmer Nancy Redfeather in a statement released by the Center for Food Safety. “I am deeply disappointed that the court would agree with the chemical companies’ arguments, stripping us of our right to make local agricultural decisions.”

Michael Shintaku, a plant pathologist at the University of Hawaii at Hilo, said the law could have prevented him from developing new types of virus-resistant plants. Unlike Roundup ready corn and other herbicide-resistant crops that make up the bulk of transgenic plants, these don’t rely on the use of chemicals.

“I was hoping that this would be overturned and it was,” Shintaku said. “Now next year, when I’m ready, we can proceed with our plants.”

But he said he also was left frustrated by the way Council handled the debate about modified agriculture.

Shinktaku said council members relied too heavily on testimony from anti-GMO activists who lacked scientific backgrounds. Big Isle and other Hawaii scientists, he said, felt left on the sidelines during the process and particularly on a day reserved for expert testimony.

“More than 90 percent of the time was spent talking to and hearing from people who were very much anti-GMO and they really had no qualifications,” Shintaku said.

“… I was appalled.”

Wille defended the process, saying Council offered 13 days for public testimony.

“Did you not have an opportunity to testify?” she said in response to the complaint.

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“I felt there was a lot of discussion,” Wille said.

Email Tom Callis at tcallis@hawaiitribune-herald.com.

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