Maui GMO moratorium back in court

SUBHEAD: Federal judge struck down voter-approved initiative last year. Shaka movement resurrects it.

By Brian Perry on 6 February 2016 for Maui News -

Image above: Demonstrators supporting Maui GMO moratorium send message to justice system. From original article.

The 9th Circuit Court of Appeals will hear arguments about whether to overturn a federal judge's ruling last year that struck down a Maui County voter-approved moratorium on genetically modified organisms.

In a ruling Thursday, the appeals court denied a motion to dismiss the appeal by the SHAKA Movement, opening the door for arguments before the court headquartered in San Francisco.

SHAKA attorney Michael Carroll called the ruling "really good news."

"The court denied the motion to dismiss, allowing the court to hear full arguments on the appeal," he said Friday. "Now the court will have to consider all our substantive arguments."

Carroll said he also was pleased that the court ruled in favor of allowing consideration of the Center for Food Safety to file an "amicus curiae," or "friend of the court" brief, in the case, which he called "another plus for our joint efforts."

The 9th Circuit also will be considering requests for amicus briefs from Moms On a Mission Hui, Moloka'o Mahi'ai and Gerry Ross.

On Friday afternoon, Monsanto said its motion to dismiss the appellant's case challenged the appeal, unsuccessfully, for lack of standing, but that the denial of the motion was without prejudice, meaning the case had not been decided on its merits.

"The court of appeals for the 9th Circuit will now move to consider the merits of the case and instructed that the standing arguments could be raised in the merits phase of the case," the company's statement said. "Monsanto believes the federal district court in Hawaii reached the correct conclusion invalidating the ballot initiative, and we will vigorously defend this position."

There was no immediate comment from Maui County.

The appeals court scheduled deadlines for briefs in the case.

The SHAKA appeal stems from last year's ruling by U.S. District Judge Susan Oki Mollway to declare the Maui County GMO moratorium invalid and unenforceable. She said that the moratorium exceeded the county's authority and was pre-empted by federal and state law.

SHAKA attorneys argued that Mollway erred in the ruling by citing a federal law that is not applicable to the Maui County moratorium ordinance.

The judge's ruling "overrode (the people's) rights guaranteed under the Hawaii State Constitution and invalidated the election results of county residents trying to protect themselves from unique harms affecting health, safety, the environment, natural resources, as well as Native Hawaiian rights," the appellants' brief says.

Mollway's ruling shelved a SHAKA attempt to implement the moratorium that voters narrowly approved in November 2014. The ordinance would have outlawed the cultivation, growth or testing of genetically engineered crops until scientific studies determined their safety and benefits.

The moratorium initiative drew more than 23,000 votes, or 50.2 percent, in favor. Those opposed were 47.9 percent. The vote came despite biotech companies and their allies spending nearly $8 million - the most ever in a Hawaii election by far - to oppose it.

Nine days following the general election, the moratorium ordinance was challenged in court by Monsanto, Dow Agrigenetics, other seed companies and their supporters. Mollway ruled in their favor June 30.

Leaders of the SHAKA Movement, a citizens group that gathered enough signatures for the first-ever ballot initiative in the county in 2014, filed an appeal Nov. 30 with the 9th Circuit Court of Appeals.

Maui County is "ground zero" for the testing and development of genetically engineered seed crops because of Hawaii's long growing seasons, SHAKA attorneys say. GMO agricultural operations use more than 80 different chemicals, creating "chemical cocktails" with unknown health and environmental impacts, they say.

* Brian Perry can be reached at

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