Department of Agriculture and Biosecurity officials admitted during a legislative briefing on Wednesday that an internal policy allowing inspectors to use discretion when evaluating goods at ports of entry for pests was contrary to state law for three decades.
During the fiery hearing, Department of Agriculture and Biosecurity Chairperson Sharon Hurd and Plant Quarantine Manager Jonathan Ho were pressed on the department’s handling on invasive species. The meeting was called by the Senate committees on Commerce and Consumer Protection and on Agriculture and Environment.
During the hearing, Ho said that when DAB inspectors come in contact with high-priority pests or new invasive pests, the products with the infestation are refused, treated or destroyed at the shipper’s expense. But for pests that are known to be established on the island and are not high priority, he said, inspectors can use their discretion on whether it’s a “heavy” or “light” infestation. And if the infestation is determined to be low, the products get released as is.
But according to the attorney general’s office, that policy is not in line with the law.
DAB claimed in a memo sent to legislators entitled “legal authority” that inspector discretion regarding treatment, quarantine, destruction or exclusion of merchandise infested with pests is grounded in state statute and implemented within federal constitutional limitations.
Attorney General Anne Lopez and Deputy Attorney General Jennifer Waihee-Polk both confirmed that state law actually requires DAB to refuse admittance of any pest-infested items. The two said the attorney general’s office was not consulted and did not contribute to the “legal authority” memo and added the legitimate state interest of preventing environmental risk likely would make federal laws not apply.
Ho said that the light infestation policy was something the agency had historically done for at least the past 20 years and acknowledged the issue was “the crux of the situation.”
“Do you want to just acknowledge that for the last 31 years, it appears as though the Department of Agriculture has been following a policy that’s in conflict with the law?” Sen. Jarrett Keohokalole (D-Kaneohe-Kailua) asked Ho.
“I don’t see how it says otherwise,” Ho admitted.
When Keohokalole asked for a list of pests that the agency recognized as something that could be OK if the infestation is light, Ho did not give a straight answer and said most of the pests that inspectors identify and decide whether to allow or turn away is learned through on-the-job training.
“Ultimately, now that it’s been brought to light, we need to fix it because I think we need to manage zero tolerance and trying to make sure that we require everything to be treated or destroyed or refused entry,” Ho said. “We are going to be in a world of hurt for the state for things that are already here, already well established and I’m in agreement for limited distribution.”
Ho said the agency does follow the law with high-priority pests, like the coconut rhinoceros beetle and coqui frog, and with pests that have never been identified on the islands.
The inspector discretion policy wasn’t the only time DAB did not follow what it was supposed to do, senators claimed.
Sen. Lynn DeCoite (D-East and Upcountry Maui- Molokai-Lanai) noted that DAB approving a permit to move a starving cow from East Molokai to West Molokai sparked an ongoing bovine tuberculosis outbreak, despite the agency’s existing rule to not allow that direction of movement to prevent potential infections. DAB did not test the starving cow before moving it, DeCoite said, which has negatively affected several Molokai ranchers.
DeCoite also said she has been waiting for DAB to send her data and an update on the situation but has not received it. Hurd told DeCoite that she had the numbers and will send them, and added that the current bovine tuberculosis spread is due to wildlife.
“It was in the cattle. You didn’t test it. You guys gave clearance to move it from east to west, it’s in your own rules that you weren’t supposed to move it,” DeCoite told Hurd.
“Understood,” Hurd responded.
In August, DAB passed an interim rule to ban shipments of soil and plant material from islands infested with the coconut rhinoceros beetle, but two beetles were confirmed to be found on the rural island as of April 10.
DeCoite also expressed frustration with DAB’s apparent lack of being proactive when it came to working with the island invasive species committees and setting up traps.
Franny Brewer, program manager for the Big Island Invasive Species Committee, said that while she can’t speak for committees on other islands, she has experienced frustrating communication with DAB.
She said when the coconut rhinoceros beetle was detected in Waikoloa in April 2024, DAB initially wanted to wait to inform the public. Brewer did not recall DAB having a clear reason for the delay, but pushed the agency to inform the public as soon as possible. The agency sent out a press release one week after one detection and one day after two more.
“As a partner, I have sometimes felt like I don’t fully understand the rationale for why DAB is choosing the actions that it chooses,” Brewer said. She added that all of the invasive species committees have strong communication with the public and try to be as proactive as they can.
By the end of the meeting, DeCoite and Sen. Angus L.K. McKelvey (D-West Maui-Maalaea-South Maui) both questioned whether DAB should be trusted to regulate biosecurity at all.
“The problem keeps getting bigger and bigger and you guys do nothing about it,” DeCoite said. “Do we dissolve DAB and create a whole new entity and transfer over to another department?”
When Hurd said she disagreed with dissolving DAB, DeCoite responded: “I don’t blame you, because you’d be out of a job.”
McKevlvey said he believed the DAB “experiment failed” and that biosecurity responsibilities should be under an agency that operates more similarly to a law enforcement agency with a unified command and control system.
“But in the meantime, until that day and that discussion, you are the biosecurity entity,” he said. “I just want to echo everything my colleagues said, because the problem is making local sustainability a joke if you can’t produce food locally because of being inundated by invasive pests.”
Hurd said the agency will have to prepare a submittal that contains a public list of pests by its next board meeting and work with the attorney general to see how the law can be changed to be more practical and enforceable.
And for local farmers and Native Hawaiian cultural practitioners, the stakes are even higher.
Molokai farmer and Niu Now advocate Kunani Nihipali told the Honolulu Star- Advertiser he’s been extremely disappointed with DAB’s response to invasive species, particularly the coconut rhinoceros beetle.
“The ‘ike, the knowledge, of coconut can be lost forever,” Nihipali said. “We’re losing our food security, we’re losing our traditional uses. … We’re going to lose everything and be dependent on shipments.”
Nihipali noted that when heavy storms come like the recent Kona lows, shipments can be disrupted that make local food production even more important.
“It’s a matter of survival,” he said.
