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
Waived: AWESC

INSIGHTS

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.

RELATED VIDEO

A recent discussion in Council Committee with Senator Russell Ruderman. This took place before the Nov. 26 federal court ruling.

RESOLUTION 22-14

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.

Where:

West Hawai‘i Civic Center
74-5044 Ane Keohokélole Highway, Building A
Kailua-Kona, Hawai‘i

When:

December 17, 2014
9:00 am.

LINK: Other Items on Dec. 17 Council Agenda via Big Island Video News

LINK: Full Agenda via Hawaii County