HAWAII COUNTY COUNCIL agenda item for December 17, 2014
Res. 22-14: ADVISES THE CORPORATION COUNSEL TO APPEAL UNITED STATES MAGISTRATE JUDGE BARRY KURREN’S RULING ON ORDINANCE NO. 13- 121 – Advises the Corporation Counsel to appeal Magistrate Judge Barry Kurren’s ruling with regard to regulating the open air cultivation, propagation, development. or testing of genetically engineered crops or plants.
- Reference: Comm. 21
Intr. by: Ms. Wille
On November 26, U.S. Magistrate Judge Barry Kurren ruled in favor of a group of plaintiffs seeking to invalidate Hawaii County Ordinance 13-121, a law passed in 2013 restricting the cultivation of new Genetically Modified Organisms on Hawaii Island. “Time to stand up for our home rule GMO ordinance,” Wille wrote in a recent newsletter.
At the same Dec. 17 meeting, the Council anticipates convening an executive session regarding the federal court ruling.
A recent discussion in Council Committee with Senator Russell Ruderman. This took place before the Nov. 26 federal court ruling.
A RESOLUTION ADVISING THE CORPORATION COUNSEL TO APPEAL UNITED STATES MAGISTRATE JUDGE BARRY KURREN’S RULING ON ORDINANCE NO. 13-121.
WHEREAS, the Hawai‘i County Charter, per Section 6-5.1, provides that the Corporation Counsel is the County’s “chief legal advisor and legal representative”; and
WHEREAS, the Hawai‘i County Charter, per Section 3-1, provides that the County Council is charged with “public policy formulation, as distinct and separate from the executive administration of county government”; and
WHEREAS, the Corporation Counsel is responsible to the County Council where settlement or litigation becomes an issue, such that the Council is the ultimate decision-making branch of the County when a question concerning an appeal or a settlement versus litigation arises; and
WHEREAS, Ordinance No. 13-121 established provisions regulating the open air cultivation, propagation, development, or testing of genetically engineered crops or plants; and
WHEREAS, the County’s position has been that Ordinance No. 13-121 is not preempted by State or Federal law; and
WHEREAS, when asked to opine on whether Ordinance No. 13-12] was preempted by State or Federal law, State Attorney General David Louie took the position that Ordinance No. 13-121 is not preempted by State or Federal Law; and
WHEREAS, recent attempts to enact State legislation to prohibit County regulation of matters relating to health and agriculture – which would include matters relating to cultivation of genetically engineered crops, have failed; and
WHEREAS, in Hawai‘i Floriculture and Nursery Association, Et Al vs. County of Hawai‘i, CIV. No. 14-00267 BMK, Magistrate Barry Kurren’s found that state law fully preempts County regulation of genetically engineered crops and plants and therefore Ordinance No. 13-121 is illegal
WHEREAS, the decision in this case largely relies on the reasoning in Syngenta Seeds, Inc v. County of Kauai, Civil No. 14-00014 (D. Haw. Aug. 25, 2014), and that case is now under appeal by the County of Kaua‘i; and
WHEREAS, the Council believes the County should appeal Magistrate Judge Barry Kurren’s ruling on Ordinance No. 13-121; now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI‘I that the County appeal United States Magistrate Judge Barry Kurren’s ruling on Ordinance No. 13-121.
BE IT FINALLY RESOLVED that the County Clerk shall transmit a copy of this resolution to the Honorable William P. Kenoi, Mayor, County of Hawai‘i; and the Office of the Corporation Counsel.
- West Hawai‘i Civic Center
74-5044 Ane Keohokélole Highway, Building A
- December 17, 2014