Three seed companies have sued Kauai County in an attempt to block the implementation of a new law that would regulate their use of pesticides and the growth of genetically modified crops on Kauai.
Syngenta, DuPont Pioneer and Agrigenetics Inc., doing business as Dow AgroSciences, filed a joint complaint at the U.S. District Court Friday against the county, requesting a permanent injunction on Ordinance 960 (formerly Bill 2491), claiming the new law is flawed and invalid.
The companies contend the new ordinance to take effect in mid-August is preempted by state and federal law that regulates pesticides and genetically modified organisms. According to the lawsuit, mandatory disclosure under the new law is arbitrary and will increase risks of commercial espionage, vandalism and misappropriation of trade secrets.
Establishing buffer zones near schools, medical facilities, dwellings, parks, public roadways, shorelines and waterways will equally inhibit farming activities, the suit alleges.
The three seed companies also accuse the Kauai County Council of violating the Hawaii open meeting law in the selection of Mason Chock as the seventh council member to fill a vacant seat after former Vice Chairwoman Nadine Nakamura resigned to serve as county managing director.
In a joint emailed statement, Paul Minehart of Syngenta said, "The ordinance is invalid. It arbitrarily targets our industry with burdensome and baseless restrictions on farming operations by attempting to regulate activities over which counties in Hawaii have no jurisdiction. These activities are already regulated by governmental agencies under state and federal laws."
It’s unknown why BASF, the fourth seed company that operates on Kauai, isn’t part of the joint lawsuit against the county. Company representatives could not be reached for comment.
Kauai Mayor Bernard Carvalho Jr. declined an interview but emailed a statement that the lawsuit was not a surprise because the administration and the Council were repeatedly warned by attorneys representing seed companies of their plans to file a complaint.
Carvalho and his administration has yet to review the lawsuit.
The administration will solicit pro-bono legal services to represent the county.
"It will be our intent to complete that process as quickly as possible, while ensuring that the county retains the most qualified special counsel available in this matter," Carvalho said in the statement.
The administration will continue to take steps to implement the new law by mid-August unless a court injunction occurs.
According to the lawsuit, the Kauai County Council met "in secret" to consider applicants to fill the seat vacated by Nakamura. The companies also claimed Chock was handpicked to get a majority vote to override the mayor’s veto.
On Nov. 15, the Council held an executive session to review applications by 18 people vying to fill the vacant seat. After the session, the Council nominated two applicants — Chock and KipuKai Kualii — and voted for Chock to serve as the seventh council member.
The following day, the full Council voted to override Carvalho’s veto of Bill 2491.
Carvalho has said he supported the intent of the bill but vetoed the measure over legal concerns.
Councilman Gary Hooser, who co-introduced Bill 2491 with Councilman Tim Bynum, described the allegations in the lawsuit on the Council’s process of selecting a seventh council member as insulting.
"There was no predetermined outcomes and we followed the law," he said.
The accusations are indicative of the companies’ attempt to bully the county, he said. "This is corporate thuggery at its worst."
Paul Achitoff, managing attorney for Earthjustice’s Mid-Pacific office, said he hasn’t read anything in the lawsuit that supports the companies’ claim that the Council’s selection process of the seventh council member was improper.
Like Hooser, Achitoff said the lawsuit is yet another bullying tactic by the seed industry.
"The companies have tried to bully their way into dominating Kauai and the political process," he said.
