Biotech companies file suit against voter-approved law

Biotech companies, including Monsanto, filed a lawsuit Thursday in U.S. District Court in Honolulu challenging the voter-approved Maui County initiative for a moratorium on genetically modified organisms.

It asks a federal judge to invalidate the ordinance approved narrowly by voters Nov. 4 and issue temporary and permanent restraining orders against Maui County from carrying out the GMO moratorium.

The lawsuit comes a day after a 2nd Circuit Court lawsuit was filed by members of the SHAKA Movement, which led a petition drive to get the moratorium on the ballot. That suit seeks a ruling to compel Maui County to quickly implement the moratorium by setting aside funding and establishing administrative rules and procedures to do so.

The plaintiffs seeking to block the initiative’s implementation say the measure is a “complete ban,” not a moratorium.

Their complaint points out that the measure can be repealed only after at least two years have passed, multimillion-dollar studies are done (funded entirely by private agricultural interests) and the Maui County Council makes findings about the health, safety and benefits of specific genetically engineered crops.

“This ban will cause immediate and traumatic harm to the local economy and to many individuals who rely on GE crops to support themselves and their families,” the plaintiffs’ complaint says. “It will also irreparably harm seed companies which rely upon the unique climate on Maui and Molokai and the highly specialized capabilities of their local facilities to breed the highest quality and most suitable seed for U.S. and international agriculture.”

It says the anti-GMO measure violates federal, state and local law and is predicated on “findings” that “are directly at odds with decades of settled science and more than 100 federal agency expert scientific determinations.”

The lawsuit says the Maui ordinance conflicts with the federal court’s recent ruling in Syngenta Seeds Inc. v. County of Kauai, which held that only the state and its Department of Agriculture – not individual counties – may regulate biotech crops.

The measure also violates the Maui County Charter’s explicit limitation on using the initiative power to appropriate money, according to the lawsuit. Also, it provides penalties “far beyond what the charter allows,” imposes improper constraints on the County Council, supplants the executive power of the mayor and assesses a “multimillion-dollar tax on agricultural interests.”

“As a longtime community member, we are proud of our operations and contributions to the islands,” said John Purcell, vice president of Monsanto Hawaii. “With more than 1,000 local employees living and working in Maui, Molokai and Oahu, we understand the significant negative consequences this referendum, if enacted, will have on the citizens, local economy, Hawaii agriculture and business on the island.

“The suit seeks to delay any enforcement of the measure and ultimately to have it declared unenforceable.”

A separate statement from Dow AgroSciences said that the plaintiffs included “several concerned Maui residents and business owners,” along with Monsanto and Agrigenetics, a company affiliated with Dow AgroSciences.

“Because the ban would cause immediate and irreparable harm, the plaintiffs are also requesting the court to enter a temporary injunction to prevent enforcement of the ordinance until the case is resolved,” the Dow statement said. “Plaintiffs firmly believe that their farming practices are safe and that the ban violates federal and Hawaii state law.”

Plaintiffs include Robert Ito Farm, a Kula farm growing genetically engineered sweet corn; the Maui Farm Bureau, which has members that sell genetically engineered crops; the Molokai Chamber of Commerce, which has 25 members, including Monsanto, that derive income from supporting the GMO industry; Mycogen Seeds (Agrigenetics), a company farming 420 acres on Molokai and employing 109 full-time, part-time and seasonal workers; and the Concerned Citizens of Molokai and Maui, an organization of more than 300 residents of those two islands.

Monsanto owns or leases 784 acres on Maui and 2,296 acres on Molokai, employing more than 365 people, according to the lawsuit.

Maui County is listed as a defendant. The county doesn’t comment on pending litigation.

SHAKA spokesman Mark Sheehan said: “We are disappointed that the agricultural companies are trying to remove this case away from a Maui court and have the case decided in federal court on Oahu.

“A Maui court is best equipped to decide any issues associated with the enforceability of the new GMO law,” Sheehan said. “Maui has the greatest interest in protecting its natural resources. Thus, a Maui court is in the best place to decide issues affecting Maui and issues involving state and county law. We intend to oppose this action and request that the federal court properly abstain from deciding this case and allow the issues to be decided on Maui.”

Regarding the SHAKA lawsuit filed Wednesday, Carol Reimann, Monsanto Hawaii community and government affairs manager, said that the company was reviewing it.

“It appears this suit is inappropriate for the courts to decide as it seeks remedies that courts cannot provide,” she said. “It is very likely we will promptly move to dismiss it. The legal validity of the ordinance under existing state and federal laws is the real issue, and that issue will be decided by a federal court.”

On Wednesday, Sheehan said that the lawsuit for Maui County to implement the GMO moratorium was necessary because of the “strong prior opposition” demonstrated by Mayor Alan Arakawa and some members of the County Council.

The SHAKA lawsuit said Hawaii is being used as “an outdoor laboratory” for companies like Monsanto to test genetically engineered crops and their related pesticide use.

Purcell said Monsanto is confident in the safety of its products, “which have been reviewed and approved by both state and federal agencies in accordance with appropriate regulations that already govern our products.”

“This local referendum interferes with and conflicts with long-established state and federal laws that support both the safety and lawful cultivation of GMO plants,” Purcell said. “For this reason, we believe it is invalid and should never become law. We have full confidence in the merits of our legal claims and that a rational outcome will block the referendum from taking effect.”

* Brian Perry can be reached at bperry@mauinews.com.