Farmer files lawsuit over GMO bill


An unnamed farmer filed a lawsuit seeking relief from requirements of Hawaii County’s recently enacted ban on genetically modified crops.

The suit, John Doe vs. County of Hawaii, was filed Monday in Hilo’s 3rd Circuit Court and seeks relief from the registration provisions of the GMO ban, which were required to be fulfilled by today.

Signed into law Dec. 5, Section 14-133 of Article 22 of the Hawaii County Code requires “all persons engaged in any form of cultivation, propagation, development, or indoor testing of genetically engineered crops or plants of any kind shall register annually beginning on or before March 5, and shall pay an annual registration fee of $100 per location, payable to the director of finance.”

Penalties for violating any provision of Article 22 include a fine of up to $1,000 for each day the violation is committed or continued.

According to the complaint, filed by Honolulu-based attorneys Margery S. Bronster and Rex Y. Fujichaku, the plaintiff cultivates a variety of papaya that was genetically engineered for resistance to the ringspot virus, a disease responsible for the decimation of the isle’s papaya industry in the 1990s.

Despite the fact papaya is exempted from the ban, growers are still required to register with the county. The suit claims the registration and disclosure process is “burdensome and intrusive,” requiring commercial growers of genetically engineered crops to submit “confidential information and trade secrets to the county Department of Research and Development, including the exact locations of these crops (which are indistinguishable visually from conventional crops); the name of the owner and/or lessee of the property; and detailed, commercially valuable and proprietary information regarding the grower’s breeding, production and cultivation practices.”

Additionally, the complaint says third parties would be able to obtain that information “unless the County’s Department of Research and Development makes a discretionary choice to withhold this information because its disclosure would ‘frustrate the ability of the County to obtain accurate information.’”

“There are a variety of reasons that Bill 113 should be held invalid in its entirety,” the suit alleges, “including because its ban on testing and cultivation of (genetically engineered) crops sharply conflicts with federal and state law.”

However, the lawsuit concerns only the registration/disclosure provision, because of today’s registration deadline.

“Plaintiff brings this action because he reasonably believes that, if he is forced to provide his confidential information to the County, he faces a genuine risk that the information will be disclosed to third parties and cause Plaintiff irreparable harm from vandalism, intimidation, and misappropriation of his trade secrets,” the complaint reads.

Director Laverne R. Omori of the county Department of Research and Development said Tuesday about 190 people have so far registered their crops with the county — the majority being Kamehameha Schools’ Bishop Estates lessees. She added she expects to process more applications today before the deadline.

Bronster, who previously served as Hawaii Attorney General from 1995-99, did not return a Tuesday call seeking comment on her client’s complaint, sending an email that read “At this moment, we are not in a position to provide comment beyond what is stated in the complaint. We are awaiting the next steps with the Court.”

Councilwoman Margaret Wille, who sponsored the bill that gave rise to the GMO ban, said Tuesday she was not surprised by the complaint.

“I sort of have been expecting it. Basically, they (GMO supporters) don’t want to be accountable and the papaya folks end up being the spokesparty for the industry. Lately, they’ve taken a two-pronged approach. They tried to get the Legislature to nullify the Hawaii County bill, and they haven’t been successful. The next step is something against the registration requirements,” she said. “I worked hard when I drafted my bill to minimize anything harmful.”

Hawaii County Corporation Counsel Lincoln Ashida said he assigned Deputy Corporation Counsel Michael Udovic as lead counsel on the suit, and he and his team were working to evaluate the complaint’s claims.

As far as today’s deadline for growers to register, Ashida said it would be up to the plaintiff and his or her attorneys to seek a stay of that deadline, if they so choose.

“It’s kind of early to tell what we’re going to do,” Udovic said in a phone call. “I just got it, literally, late last night or early this morning. We still have to see what their arguments are. We’ll see if we’re going to file an opposition of some sort, which I’m sure is what they want, but we’re going to have to wait and see.”

In a press release emailed Tuesday morning, a spokeswoman for Hawaii Farmers &Ranchers United wrote that her group strongly supports the suit, which was “brought by farmers who are frightened by the potential implications of complying with these unjustified and intrusive requirements — specifically harassment of their family and employees and vandalism of their operations by anti-technology activists. …

“The registration and disclosure requirements of Bill 113 unfairly target growers of genetically engineered crops, primarily papaya growers, by forcing them to disclose personal and commercially confidential information about themselves and their operations without any scientific or factual justification.

“Without any assurances that the county can or will protect the registration information from public disclosure as allowed under Bill 113, these farmers and growers have good reason to believe that providing this information could result in real harm — including the vandalizing of their crops or intimidation or harassment of their family and/or employees. Unfortunately, in recent years, anti-genetically engineered or anti-GMO agriculture political activism in Hawaii (and throughout the United States) has crossed the line from a spirited debate to extremism, vandalism, and violence.”

A hearing is scheduled at 10:30 a.m. Friday in Hilo Circuit Court Judge Greg Nakamura’s courtroom.

Email Colin M. Stewart at cstewart@hawaiitribune-herald.com.

 

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