County law cannot override existing laws, federal or state jurisdictions

Our County

For the last two years, I’ve pondered whether SHAKA members received proper legal counsel when they began drafting their 2014 ballot initiative to limit genetically modified organism agriculture. It seems any attorney worth his or her salt would

have seen the legal problem with using a county election to override state and federal law and informed their clients about it.

The ruling by the 9th U.S. Circuit Court of Appeals last month appears to have confirmed my suspicions. If the county had tried to enforce their GMO moratorium, it would have likely cost you the taxpayer millions of dollars in lawsuits for trying to regulate an industry we have no jurisdiction over.

Specifically, the 9th Circuit upheld lower-court rulings by two different federal judges that invalidated anti-GMO legislation in Kauai, Hawaii and Maui counties.

In doing so the court ruled that counties are precluded from regulating GMO crops, and thus efforts by counties to limit GMO agriculture, such as the 2014 ballot measure that was passed by the voters, are unlawful. The ruling stated specifically that federal law, specifically the Plant Protection Act, is intended to “occupy the field” of regulation over such crops, and thus regulations related to GMOs are outside the police powers of the county.

In addition, the ruling also pointed out that Hawaii has a comprehensive state statutory scheme for the regulation of potentially harmful plants that also serves to limit the ability of counties to regulate GMOs.

In other words, county law cannot override the existing laws and jurisdiction of the federal or state government, even if that law is passed by popular vote. For that reason, the GMO moratorium ballot initiative was struck down by the U.S. District Court, and that decision was affirmed by the 9th Circuit.

The reality is that just because you vote for something to happen in a county election doesn’t mean that it automatically makes it legal. For example, if enough Maui County residents voted to make murder legal it also would have been challenged by the courts, because the state still considers it a felony offense.

In fact, if the county could override state jurisdiction I would have proposed several ballot initiatives myself a long time ago. They would have included having the county take over certain responsibilities and funds from the state departments of Agriculture, Health, Land and Natural Resources and Finance.

I would have proposed changes that would have more people inspecting Neighbor Island goods for the fire ant and coqui frogs; more Health Department workers to fight dengue and other mosquito borne diseases; more Division of Conservation and Resources Enforcement officers to enforce fishing restrictions in order to protect our reef fish populations; and more help maintaining and repairing our infrastructure by giving the counties a fairer share of the transient accommodations tax.

I personally wish the county had the authority to do these things, but we don’t. In several areas, we as county officials can only lobby our state and federal legislators to do what we think is right on behalf of the community.

Organizations like Maui Tomorrow and the SHAKA movement can and should do the same. They would be far more productive in their efforts if they targeted the proper venues.

I do want to point out that this was the first time any group managed to gather enough signatures to have an initiative placed upon the ballot in Maui County, and so the GMO ballot initiative was a historic accomplishment. But there should have been more education involved so that voters knew exactly what they were endorsing before they signed their names.

In fact I encourage you to get the 9th Circuit Court of Appeals opinion for yourself and read it, or have a trusted friend with legal experience read it and explain it to you.

Don’t make important decisions for your entire community based upon what your friends have said on social media. From what I can see, social media is a tool which benefits those who yell out the longest and loudest, but that doesn’t mean they know what they’re talking about.

Don’t give in to the mob mentality and online bullying tactics. Do the research, get the facts and have a discussion. Otherwise, people will continue to make bad assumptions leading to the wrong conclusions.

* “Our County,” a column from Maui County Mayor Alan Arakawa, is about county issues and activities of county government. The column usually appears on the first and third Fridays of the month.


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