A REVERSAL IN FORTUNE

The Decision and Order issued by The Honorable Barry M. Kurren in Sygenta

Seeds, Inc., et. al. v. County of Kauai, Civ. No. 14-00014 BMK (U.S. Dist. Ct.

Hawaii) August 25, 2014, is a watershed, landmark precedent on Preemption,

GMO, Pesticides, and Labeling.

On the issue of preemption the Court held,

1. Kauai Ordinance 960 is not preempted by Federal Law,

2. Kauai Ordinance 960 is preempted by State Law, relying in chief on,

Richardson v. City & County of Honolulu, 868 P.2d. 1193 (Haw.1994),

“counties may still have authority to regulate in areas of statewide

concern absent some additional basis for preemption.”

a. The Court cites, Waikiki Resort Hotel v. City & County of

Honolulu, 624 P.2d. 1353, 1366 (Haw. 1981), “A test to determine

whether an ordinance conflicts with a statute is whether it prohibits

what the statute permits or permits what the statute prohibits.”

b. “As with pesticide regulation, the court must inquire “whether the

statutory scheme at issue indicates a legislative intention, either

express or implied, to be exclusive and uniform throughout the

state.” Richardson, 868 P2d. at 1209”” Sygenta Seeds, Inc., et. al. v.

County of Kauai at 21-22.

c. State laws impliedly preempt GMO requirements.

“Lacking a direct conflict between Ordinance 960 and any state

law cited by Plaintiffs, the Court must next analyze whether the

ordinance legislates “in an area already staked out by the

legislature for exclusive and statewide statutory treatment.”

Richardson, 868 P.2d. at 1207. Whether an ordinance

impermissibly enters an area of exclusive and statewide treatment

may be measured by the “comprehensive statutory scheme test.”

Id. at 1208.

Under this test, the “critical determination to be made” is whether

the statutory scheme at issue indicates a legislative intention,

whether, express or implied, to be exclusive and uniform

throughout the state.” Id. at 1209.” Sygenta Seeds, Inc., et. al. v.

County of Kauai at 15-22. [Emphasis Supplied]

d. “As with the foregoing discussion of the state pesticide law, the

Court finds that these statutory provisions, in the context of art. XI

§3 [Hawaii State Constitution], the comprehensive administration

system established under the DOA [State Department of

Agriculture] , and the complete absence of reference to counties

and local governments therein evidence the legislature’s intent

that the state scheme for the regulation of specific potentially

harmful plants be uniform and exclusive preempting the

imposition of local regulations on the issue.” Sygenta Seeds, Inc.,

et. al. v. County of Kauai at 23. [Emphasis Supplied]

e. The Court’s decision in Sygenta Seeds, Inc., et. al. v. County of

Kauai is flawed. The “absence” referred to by the Court, the

Court’s interpretation the complete absence of reference to counties

or local governments” to be legislative intent to preempt local

regulation on the issue is evidentiary unsupported and factually

not grounded.

f. The Hawaii Legislature has considered the matters and issues of

GMO, Pesticides, and Labeling, as did the Court in Sygenta Seeds,

Inc., et. al. v. County of Kauai. The Hawaii Legislature, the Senate

and the House of Representatives, have taken no action on the

State level on GMO, Pesticides, and Labeling, electing to defer to

the county governments and local governments and allow county

governments and local governments to legislate in these matters.

Specifically,

MEASURE STATUS OF GMO, PESTICIDE, LABELING

HAWAII LEGISLTURE - As of Tuesday, August 26, 2014.

HOUSE BILL 174 was introduced by House Speaker Joe Souki

(Maui), Representative Mele Carroll (Maui), Representative Nicole

Lowen (Big Island), Representative John Mizuno (Oahu) and

Representative Cindy Evans (Oahu). Effective beginning 01/01/14.

Requires specific labeling for any food or raw agricultural

commodity sold in the State that contains or was produced with a

genetically engineered material.

HAWAII LEGISLTURE - HOUSE BILL 174 HD 1

Requires all imported genetically engineered fresh produce sold in

Hawaii to be labeled as "genetically engineered". Requires

disclosure of genetic engineering and compliance with

recommendations of the Invasive Species Council upon import.

Effective July 1, 2050.

HAWAII LEGISLTURE - HOUSE BILL 174 HD 2

Imposes labeling requirements and import restrictions on imported

genetically engineered produce. Authorizes labeling of non-

genetically engineered food and creates a private right of action to

enjoin violations. Effective July 1, 2112.

MEASURE STATUS

3/21/2013 The Hawaii Senate Committees on Agriculture

(AGL), Commerce and Consumer Protection (CPN),

and Health (HTH) held a public hearing.

3/21/2013 The committee on AGL deferred the measure.

The committee on CPN deferred the measure.

The committee on HTH deferred the measure.

12/18/2013 Carried over to 2014 Regular Session.

8/26/2014 The Hawaii Legislature has adjourned for 2014.

No action was taken on HB 174, HB 174 HD 1, or HB 174 HD 2 during the 2014 Regular Session.

CONCLUSION

The responsibility of the Legislature is to make law; the responsibility of

the Judiciary is to faithfully apply the law made by the Legislature. For the

Court to make law would be to usurp the Legislative function to which the Court

has no legitimate authority.

The Hawaii Supreme Court stated in Matson Terminals, Inc. v. Hasegawa,

512 P.2d 1 (1973),

“We are of the opinion that the legislative wisdom or lack of wisdom is

not a proper issue before the court. Neither can the court guess as to the

"probable" legislative intent when the words used in the statute are clear

and unambiguous. The court cannot "question the probable legislative

intent and construe the statute", which is clear on its face, and insert a

meaning that the court, itself, believes is logical.”

The absence of legislation and therefore any legislative language is not

subject, logically, to any interpretation. The imposition of an “interpretation” by

the Court where there no express legislation or legislative language from which

to glean meaning from is action by the Court to legislate – prohibited conduct.

EPILOGUE

The question and decision to be made,

Enjoyment from implementing or enforcing Ordinance 960?