by Brian Shilhavy

Health Impact News Editor

As we have previously reported here at Health Impact News, World War III is now engaged in battles at the same location that brought the United States into Word War II: the islands of Hawaii.

Here is what I have previously written about why I do not think I am exaggerating in calling Hawaii the current battle ground for World War III:

There is probably no place on the planet that is home to such diametrically opposite philosophies of farming and agriculture than Hawaii. Hawaii is a huge testing ground for the development of GMO seeds, and it is also home to some of the most innovative sustainable agricultural projects found anywhere in the world. For a long time now, most of the food people eat in Hawaii has been imported from the mainland, as large corporations practice mono-cropping in large-scale production of fruits, nuts, coffee, etc. in Hawaii, to the exclusion of other crops and livestock. At one time, Dole Foods owned one whole island. But more recently, people in Hawaii have begun to look at sustainable agricultural principles to better utilize the land, and take steps towards food independence. This new generation of sustainable small-scale farmers believe they can not only become independent from cheap corporate food imported from the mainland, but become an exporter of high quality foods as well. China and Japan are ready markets for high-end food products produced with sustainable methods, in nutrient rich soil. However, this growing trend threatens Big Ag and Big Food and their corporate profits, as Hawaii’s rich natural resources allow them to mass produce a lot of food in far less space than in most of the rest of the U.S. Since every single person on the planet has to eat to live, I don’t think I am exaggerating too much by calling Hawaii the battleground for WWIII. It is not a battle of nation’s armies as WWII was, when the Japanese bombed Hawaii and dragged the U.S. into the war. Rather, it is a battle against the rights of consumers to grow and eat the kind of food they want, versus the corporate monopolies funded by the U.S. Government to force a food system largely funded by our tax dollars to mass produce cheap food that consumers don’t really want. The casualties from this war can be far greater than the total casualties from both WWI and WWII. (Full Article.)

Maui Residents Vote to Ban GMOs in November 2014 – Monsanto Sues to Block Ban

As we reported in November, Maui residents successfully passed a ballot initiative banning new GMO crops in Maui County. The resolution passed by a slim margin, but Biotech giants Monsanto and Dow AgroSciences spent $8 million in a campaign to prevent the measure from passing. So while the margin of victory was small, the victory was HUGE!

As soon it was obvious that the measure had been passed, Monsanto Hawaii filed a lawsuit in federal court to block the ban, and a preliminary injunction was granted by the court.

SHAKA Strikes Back

Here in the second week of December, the grassroots organization in Hawaii called “SHAKA” has successfully filed a motion to become a party to the lawsuit Monsanto filed, and successfully moved the case to a different judge. The Memorandum filed with the federal court appears to have been so compelling, that the existing judge, Judge Barry Kurren, really had no choice but to allow SHAKA to become a party to the lawsuit. Then they promptly booted Judge Kurren off the case. Kurren ruled earlier this year that county ordinances regulating GMO and pesticides on Kauai and the Big Island improperly preempted state law, which is probably why Monsanto and Biotech wanted him on this case as well.

So who is SHAKA?

Here is a bit of information about SHAKA from their website, the group behind getting the GMO ban to pass in the November elections:

The SHAKA Movement is an advocacy, communications and educational outreach program and hub, where people and organizations come together to work in unison toward sustainable practices to affect a positive change for the environment and for the people of the Hawaiian Islands. We are a self-organizing grassroots movement, which means that each of US who participates, IS the movement. The goal of this website is to educate and organize citizens. We provide the best information available and give all citizens the opportunity to participate in affecting change in a way that best suits their life, their passion and their time availability. The Shaka Movement is a Hawaii tax exempt 501c3 nonprofit educational organization and our mission is to bring forth informed scientific facts about living in a balanced relationship with the Hawaii environment through peaceful communications and actions so as to protect, preserve and improve the Public Trust Resources of Hawaii for the current and future generations. We are committed to bringing forth informed scientific facts about living in a balanced relationship with the Hawaii environment through peaceful communications and actions so as to protect, preserve and improve the Public Trust Resources for current and future generations. We have successfully assisted five Maui County Citizens in gathering over 19,000 signatures on petitions to place a new ordinance in the Maui County Charter to establish a Temporary Moratorium on the cultivation of GMO Crops, test crops and their associated pesticide use until industry funded and county administered safety studies are conducted and reviewed by the council and the public. Over 20,000 people support this movement and we are growing by thousands each month. (Source.)

How Did SHAKA Get to be Party to the Lawsuit Biotech Filed in Federal Court?

In short, by apparently hiring some very intelligent attorneys who know and understand the Hawaii State Constitution, local ordinances, state laws, and federal laws, as applied to the current situation.

According to Civil Beat, other groups filed motions to become party to the lawsuit and defend the GMO ban, but failed:

The national nonprofit Center for Food Safety and several local groups, including Moms on a Mission Hui, also sought to defend the moratorium but (Judge) Kurren denied their request. (Source.)

Civil Beat has posted the entire motion, including its Memorandum supporting its motion, that apparently forced Judge Kurren’s hand to allow them to become a party to the lawsuit and defend the ban, which led to his being kicked off the case. The case was reassigned to Judge Susan Molloway, who will hear the SHAKA Movement’s motion in March.

I have read through the SHAKA Memorandum in support of their motion, and it is a brilliant piece of legal exposition. One of things SHAKA apparently did right after the elections in November, apparently knowing full well that Biotech companies like Monsanto and Dow Chemical would sue to challenge the voter-instituted ban on GMOs in Maui County, is file their own lawsuit at the State level against the county, where the Mayor was known to be in opposition to the ban. They also sued the Biotech firms before they even had a chance to file any lawsuit challenging the ban (see: Monsanto, Maui County Sued Over GMO Farming Moratorium).

Apparently, SHAKA’s lawsuit was filed just one day prior to the Biotech lawsuit being filed in federal court, and they have legal precedence for requesting that the federal lawsuit be dismissed until the first case, filed at the State level, is decided. From their Memorandum:

In a historic election on November 4, 2014, Maui voters enacted into law a County Ordinance requiring GMO businesses to demonstrate that the testing and development of genetically modified organisms are not harmful to the Maui community and its ecosystem. The Ordinance requires that the GMO industry fund a study that is independently administered by the County to show that the operations are not harmful. Maui is ground zero for large agricultural companies’ testing facilities that develop genetically engineered crops. Notwithstanding, there are no regulations on the Federal or State level that control these undisclosed and unmonitored facilities. These facilities use high quantities and combinations of pesticides and combine DNA from various plants and animals to create new strains of vegetation. Before the agricultural companies filed this lawsuit, the original proponents and drafters of the Ordinance, Intervenors, filed a lawsuit in State Court seeking a declaratory ruling that the Ordinance is not preempted by State law, and that the County should proceed forward with steps necessary to implement the law. The agricultural companies initiated this lawsuit the following day in response to the prior State Court action in an attempt to forum shop and bring the case to Federal Court.

Biotech’s main attack seems to be that county ordinances cannot trump State laws, and at the State level Biotech has had their way getting their agenda passed. But the legal brief submitted by SHAKA seems to completely destroy that argument on several fronts.

The first one is that there is already a case pending in State court! (The one SHAKA filed right after the election mentioned above.)

This Court should abstain from resolving the important State issues that directly impact the County’s ability to protect its natural environment and avoid irreparable harm to Public Trust resources. These issues should first be resolved on the State level under comity and abstention principals. Notably, Maui County has already been prohibiting the testing, cultivation, and growing of genetically engineered kalo (taro) since 2009 in the Maui County Code. See Maui County Code § § 20-38-010-060. Maui County has a substantial and compelling interest in having these issues decided in State Court. A Maui State Court is best positioned to determine the validity of this Ordinance based on the Public Trust Doctrine made a part of the Hawai’i Constitution that recognizes the duty of the County to protect Hawaii’s delicate environment. For the reasons set forth herein, Intervenors respectfully request that the Court grant this Motion, and dismiss, enter judgment on the pleadings, or stay this proceeding, to allow the issues to be decided in State Court, the original forum where these issues were first raised.

Next, SHAKA presents the argument that at the State level there should be environmental safeguards in place to protect Hawaii’s natural resources, as there are in other states like California:

Hawai’i is the most isolated island chain in the world. As a result of its unique ecosystem, populations of plants and animals are smaller, less stable, and more susceptible to disruption, damage, or complete loss by human intervention. Palila v. Hawaii Dep’t of Land & Natural Resources, 649 F. Supp. 1070, 1081 n.42 (D. Haw. 1986) (citing Juvik & Juvik, Mauna Kea and the Myth of Multiple Use: Endangered Species and Mountain Management in Hawaii, 4 Mountain Research and Development 191 (August 1984)). There are more endangered and extinct species in Hawai’i than anywhere in North America. By Plaintiffs’ own admission, Hawai’i is a magnet for the experimental testing of genetically modified organisms, as it offers “more growing cycles per year” than any other location in the United States. See Complaint <]I 18, attached hereto as Exhibit A. Moreover, despite its delicate ecosystem, Hawai’i is one State where there are no State laws that have been adopted to control or even monitor the experimental testing or use of GMOS. By contrast, for example, counties throughout California have adopted prohibitions on the growing, cultivation, and raising of GMOs. Id. With the exception of Maui County’s prohibition on regulating genetically engineered kalo, there are no laws in place regulating the genetic testing and development of GMOs and related operations affecting Maui County. The fact that Hawai’i is seen by the industry as the ideal location for genetic testing, coupled with the fact that Hawai’i does not have any general laws on GMOs, agricultural companies have chosen Hawai’i, and Maui County in particular, as their forum of choice for genetic testing.

The next section of SHAKA’s Memorandum appeals to highest State law in Hawaii, the Hawaii State Constitution:

Ingrained throughout the Hawai’i Constitution are vital environmental considerations that recognize the importance of preserving Hawaii’s delicate natural environment. These provisions are unique given Hawaii’s delicate ecosystem, history, and cultural heritage. Under the Hawai’i Constitution, the State is expressly obligated to provide for the “protection and promotion of the public health”, Haw. Const. art. IX, § 1; and has the express power to “promote and maintain a healthful environment, including the prevention of any excessive demands upon the environment and the State’s resources.” Id. art. IX, § 8. Moreover, the Hawai’i Constitution further recognizes that: [e ]ach person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulations provided by law.

SHAKA then quotes Hawaii Constitutional Law in a matter that seems most relevant to the current case that Biotech is trying to make, namely that State laws supposedly trump County laws, by showing that the Hawaii State Constitution already grants the authority at the county level to pass ordinances such as the GMO ban recently passed:

To protect Hawaii’s natural resources, the Hawai’i Constitution expressly includes the Public Trust Doctrine as a “fundamental principal” of constitutional law. Kauai Springs, Inc. v. Planning Comm’n of Kaua’i, 133 Hawai’i 141, 171, 324 P.3d 951, 981 (2014) (citation omitted). Under the Public Trust Doctrine, the state and each county are obligated to conserve and protect Hawaii’s natural resources: For the benefit of present and future generations, the State and its political subdivisions [the counties] shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals, energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State. All public natural resources are held in trust by the State for the benefit of the people. Haw. Const. art. XI, § 1 (emphasis added). The Hawai’i Constitution further provides that the legislature shall create counties, and that each county shall have and exercise such powers as shall be conferred under “general laws.” Haw. Const. art. VIII, § 1. In accord with the Public Trust Doctrine and the authority to confer powers to the counties, the State Legislature expressly delegated certain powers to each county “subject to general law[.]” HRS § 46-1.5. Such powers include: (1) “the power to enact ordinances deemed necessary to protect health, life, and property … of the county and its inhabitants …. “; (2) “enact and enforce ordinances necessary to prevent or summarily remove public nuisances”; and (3) matters of sanitation. HRS § 46-1.5(12)-(14). The County is further authorized to fix a penalty for the violation of any ordinance, which may be a misdemeanor, petty misdemeanor, or violation as defined by general law. Id.

Having established the rights of counties in Hawaii, via the Hawaii State Constitution, to establish county ordinances to protect the environment and health of the people of Hawaii, the SHAKA Memorandum proceeds to give several examples of where this is already happening in Maui County, such as an existing prohibition on growing GMO taro.

Read the entire Memorandum and court filings at Civil Beat.

This War is Just Getting Started

We will be watching the March date in Hawaii to see if the new judge assigned to the federal case filed by Monsanto and Biotech will dismiss it as is being requested by SHAKA, on what appears to be very solid legal grounds. But don’t hold your breath. This war is just getting started! And what happens in Hawaii, just as in WWII, will profoundly affect the rest of the United States and the world.

Stay tuned….

See Also: