Judge rules GMO moratorium invalid

A federal judge struck down the Maui County moratorium on genetically engineered crops passed by voters last fall, ruling Tuesday that the ordinance is “invalid and unenforceable.”

U.S. District Chief Judge Susan Oki Mollway issued the 56-page order determining that the ordinance is pre-empted by federal and state law and exceeds the county’s authority. She entered her judgment in favor of Monsanto, Dow Agrigenetics, other seed companies and their supporters, who filed the lawsuit against the county nine days after the historic ballot initiative passed in November.

County spokesman Rod Antone said Tuesday afternoon: “We will abide by the judge’s ruling.”

The attorney for the SHAKA Movement, a citizens group that gathered enough signatures for the first-ever ballot initiative in the county last year, said shortly after the ruling that he intends to file an appeal.

“We’re deeply saddened by the court’s ruling, we do intend to file an appeal and we’re hopeful we’ll have a better result,” attorney Michael Carroll said in a phone interview. He said in a subsequent news release that the ruling “not only ignores the will of the people, but places at risk all state and local regulations that seek to address the harmful impacts associated with GMO (genetically modified organism) operations.”

Mollway’s ruling echoes similar reasoning used to strike down anti-GMO measures on Kauai and Hawaii island last year. In August, U.S. Magistrate Judge Barry Kurren invalidated a Kauai County ordinance that regulated pesticide use and farming of GMOs by large-scale commercial agriculture companies. The law required the companies to disclose pesticide use and to set up buffer zones near homes, medical facilities, schools, parks, roads, shorelines and waterways.

He said the ordinance, passed by the Kauai Council over Mayor Bernard Carvalho’s veto, unlawfully pre-empted state law governing pesticide use.

Just three months later, Kurren invalidated Hawaii County’s partial ban on growing genetically engineered crops, citing the same reasoning. The law, adopted by the Hawaii County Council, banned open-air use and testing of GMOs with a few exceptions.

Kurren had been slated to preside over the Maui case before it was reassigned to Mollway, who is slated to retire from the bench Nov. 6.

Supporters of the moratorium initiative described the ruling as “a big blow to Maui County voters.”

“The people have a constitutional right to their health, and we are only asking that our rights to health and to protect ourselves be upheld,” SHAKA spokesman Mark Sheehan said in a phone interview. “She (Mollway) refuses to enforce the citizens’ moratorium and compel safety testing. That’s all the ordinance asks for. Instead, the judge found some way to justify the industry, to support the industry’s assault on the environment and the people, and deny the simplest of requests made by 23,000 people – let us know what is happening to us, do an EIS (environmental impact statement).”

More than 23,000 Maui County residents voted to approve the moratorium in the Nov. 4 election, despite biotech companies and their allies spending nearly $8 million – the most ever in a Hawaii election by far – to oppose it. In the closest race of the election, the measure passed with 50.2 percent voting in favor and 47.9 percent (22,005 votes) against it.

The moratorium, had it been upheld by the court, would have made it illegal to cultivate, grow or test genetically engineered crops “until studies prove they are safe” as determined by the Maui County Council. The issue quickly became one of the most divisive ballot initiatives in county history as it gained steam last year. Monsanto and Dow AgroSciences subsidiary Mycogen Seeds employ about 600 people on farms on Maui and Molokai.

Implementation of the moratorium was stayed on Nov. 17 until arguments could be heard in court. The initial stay was to last until March 31, but Mollway extended the stay until June to see if the Legislature would take action on the issue and impact the case. It did not.

Mollway said that the ruling was made “purely on legal grounds” and does not speak to whether genetically engineered crops are beneficial or dangerous.

“No portion of this ruling says anything about whether GE (genetically engineered) organisms are good or bad or about whether the court thinks the substance of the ordinance would be beneficial to the county,” Mollway said in her ruling.

“But any court is a reactive body that addresses matters before it rather than reaching out to grab hold of whatever matters may catch a judge’s fancy because the matters are interesting, important, or of great concern to many people,” she said.

* Eileen Chao can be reached at echao@mauinews.com.