Update Maui GMO ban repeal

SUBHEAD: County has a duty to honor the will of voters, and to protect the health and safety of its citizens.

By Staff on 15 March 2015 for the Shaka Movement -

Image above: On September 10th, 2014, Monsanto crew members Gerard Manuel, left, and Rommel Angale, right, count corn sprouts in a field of test hybrids in a breeding nursery near Kihei, Hawaii. (Matthew Thayer/AP/The Maui News) From (http://www.oregonlive.com/today/index.ssf/2014/11/maui_voters_pass_gmo_ban_but_j.html).

On Monday night, March 9th, just hours before the court hearing that had been scheduled on December 16, Judge Mollway issued a continuance (postponement) until March 31. The judge’€™s reasons for doing this were because it somehow came to her attention that there were two bills before the State legislature seeking “€œto prohibit county ordinances abridging the rights of farmers and ranchers to use agricultural practices not prohibited by federal law.”€ The judge rhetorically asked, “€œIs there any dispute that the enactment of either of these bills would nullify the ordinance at issue in this case?”€

With the help of our allies at the Center for Food Safety, we were able to come to court the next morning with a letter from Senator Russel Ruderman (chair of the State Senate Committee on Agriculture) explaining to the judge that the two bills she sited were “effectively “€˜dead”€™ for this legislative session.”€ A copy of the letter is available here.

As the hearing progressed, Judge Mollway requested two additional briefs from our counsel, which we consider to be of significant importance. The first is our response to the County of Maui’s motion (joining with the industry) asking the Judge to dismiss SHAKA’€™s complaint and case against the industry (for the harms they are inflicting upon the public health and the public trust resources of Hawaii) as well as the county officials (for their failure to certify and implement the citizen’€™s initiative approved in last November’€™s election). A copy of our brief in response is available here.

Secondly, the judge asked for a 2500 word memo, just from our lawyers, on the harm of keeping in place the injunction the industry and the County conspired to ask the federal court to order on November 13, 2014 (9 days after the election); An order, by federal authority, enjoining the County from “€œpublishing or certifying, enforcing, or otherwise acting upon the ordinance.”€

The federal court, basing it’€™s judgement upon the “€œstipulated agreement”€ between the County and the industry, ordered that this prohibition would remain in place “€œuntil March 31, 2015, or until further order of this court.”

The memorandum that Judge Mollway requested will be the first opportunity that we will have to bring to the court the issue of “€œharms”€, which are the very foundation of the ordinance we together passed, and the attack on the wellbeing of the people of Hawaii, (our soils, our waters, and our future) represented by the bioengineering activities of Monsanto and Dow Chemical and their associates in the biotechnology chemical industries. This brief is due by Friday, March 13, and will be available on this website at that time.

The memorandum in opposition to Maui County’€™s motion to dismiss SHAKA’€™s case includes the following:

“€œThe rush with which the County and the Industry have sought to invalidate the Ordinance in the Federal Court action does not support granting this Motion. All the agreements to dispose of this case in an expedited fashion were made between the Industry and the County before SHAKA was allowed to intervene and state an objection.

The Industry and the County never contacted SHAKA regarding its position on the expedited briefing schedule and the injunction, despite being aware of this pending State Court action and SHAKA’€™s interest in the Federal Court action. Simply because the Industry and the County are seeking to terminate this case in four months does not justify dismissing the State Court action and giving greater weight to the Federal Court action."

“The County’€™s actions and statements since the Ordinance was first introduced under the voter initiative power make plain that the County does not “€”and will not” €”support the Ordinance. Although the County attempts to argue that it “€œhad no opportunity to enforce the ordinance because it has been subject to the restraining order issued in the Robert Ito Farms case[,]”€ this is an overstatement. The County itself agreed to a stipulation with the Industry subjecting the County to the restraining order. The County enjoined itself."

“Ultimately, it is the County’€™s job to enforce ordinances that are adopted by its electorate. This is regardless of whether County officials oppose the law or whether the officials consider the law “controversial.”€

Once the Maui electorate approved the Ordinance into law, the County was obligated to certify the election results approving the Ordinance and properly implement the law. The County refused to implement the Ordinance, so SHAKA sought declaratory and injunctive relief in this action in order to have the Ordinance enforced."

“Not only did the County have a duty to honor the will of its voters, but it also has a continuing duty to protect the health and safety of its citizens and the natural resources. Under the Public Trust Doctrine, the County has a significant duty to preserve and protect environmental resources for current and future generations.

As a result of the County’€™s inaction and failure to protect these interests, the necessary protections to Maui’s environment, public health, and natural resources demanded by Maui voters have been compromised."

 See December 2014 memorandum here (http://www.mauigmomoratoriumnews.org/wp-content/uploads/2014/12/Filed_Memo_in_Opposition_to_County.pdf)

In response to Judge Mollway’s request at the March 10th hearing, SHAKA’€™s lawyers today filed a brief explaining the “€œbalance of harms”€ alleged by the industry compared with the harms being inflicted upon our environment and island communities. The issue is central to the injunction that expires on March 31st that till now has prevented the certification of the November election result and the Moratorium we voted for. The document is available here.

In the most relevant section the memorandum states – “€œAt stake is ongoing damage to the environment, potentially serious health problems associated with continuing practices, threats to Native Hawaiian culture and practices, and the integrity of our own election process. These interests are significantly concrete and cannot be remedied by money damages.

 They are significantly greater than the corporate profits that the Industry relies on to justify the injunction. These harms are, for all intents and purposes, irreparable and imminent”€

A more extensive discussion and elaboration on each of these points (referencing testimony submitted to the court in form of declarations by Maui residents and expert witnesses) is contained within the memorandum.

See March 2015 memorandum here (http://www.mauigmomoratoriumnews.org/wp-content/uploads/2015/03/BriefOnTheBalanceofHarms.pdf)

SHAKA Movement
See http://www.mauigmomoratoriumnews.org/
PO Box 970538
Paia HI 96779


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