HILO — Hawaii County’s failed ban on outdoor cultivation of genetically modified crops will be aired Wednesday in a federal court in Honolulu, one of three county cases being appealed after local laws were struck down.
The U.S. Court of Appeals for the Ninth Circuit has scheduled oral arguments for attorneys representing Hawaii, Maui and Kauai counties, whose anti-GMO laws were invalidated in federal district court after they were challenged by agricultural concerns and biotech companies.
The oral arguments, beginning at 9 a.m. Wednesday, will be shown live on the web at www.ca9.uscourts.gov/media/live_oral_arguments.php.
“All three counties’ cases are being argued back to back to back,” Honolulu attorney Paul Alston, who represents biotech concerns, said Friday. “It should be a pretty intense morning for the court and for the public.”
Hawaii County’s 2013 ordinance sought to ban the growing of GMO crops in open-air conditions, with some exceptions. Papaya farmers who have customarily grown GMO crops in open air would continue to be able to do so, provided they are registered with the county. Corn already growing on the island, as well as scientific study in greenhouses and other enclosed settings, were exempted by the county ordinance. There are also exemptions for emergencies.
The bill proved one of the most controversial issues for the County Council in decades. It engendered days of hearings, thousands of testifiers and long emotional discussions.
Opponents worried about the as-yet unknown consequences of genetic engineering.
“Accepting the lower court decision means accepting that GMO contamination of conventional and organic farms is legal, healthy and acceptable to the people of Hawaii,” Pahoa resident Jahnava Baldassarre said during 2014 testimony.
Farmers striving to stay in business and researchers working toward food self-sufficiency for the island had contrary opinions.
Lukas Kambic, who is studying agriculture at University of Hawaii at Hilo, said creating an anti-GMO atmosphere in Hawaii County would lure more people creating farms “crippled by ideology and emotion,” limiting the ability of islanders to feed themselves.
U.S. Magistrate Judge Barry Kurren invalidated Hawaii County’s law in 2014, saying state law pre-empts county law on the issue. He said lawmakers intended the state to have broad oversight of agricultural issues in Hawaii.
Kohala Councilwoman Margaret Wille, author of the original bill limiting GMO, disagrees with that assessment. How can the county fulfill its role of protecting the public health and safety if it can’t pass laws doing just that, she argues.
“I would hope that people could see the pre-emption issue is totally bogus,” Wille said in a telephone interview Friday. “There was no state law that would have pre-empted what we did.”
Hawaii County’s battle is being fought by national nonprofit environmental advocacy groups the Center for Food Safety and Earthjustice, who agreed to work without being paid. Those two groups are also representing a coalition of community members and environmental organizations in the Kauai case. Maui’s SHAKA group, defending a GMO moratorium there, has hired its own attorneys.
Wille’s greatest concern in the issue is cross-pollination or contamination of crops that farmers adjacent to GMO producers want to keep GMO-free or organic.
“It’s a thorny issue,” Wille said. “There’s a lot of power up there. I really felt that we should be trying to address that issue ourselves here, regardless of how the case comes out.”
Hawaii County’s decision to appeal came on a close 5-4 vote. Puna Councilmen Greggor Ilagan and Danny Paleka joined Hilo Councilmen Dennis “Fresh” Onishi and Aaron Chung on the no votes. They cited concerns for local farmers and a reluctance to enter what could be lengthy litigation. Onishi and Ilagan had voted against the original ordinance in 2013. Paleka and Chung were not on the council that year.