The Other Shoe Drops: Kauai Anti-GMO Ordinance Challenged In Federal Court

by Robert Thomas, InverseCondemnation, January 11, 2014

At the Hawaii Agriculture Law Conference which we just wrapped last week, perhaps the hottest topic on the agenda was the anti-GMO ordinances recently adopted by the Counties of Hawaii (Big Island) and Kauai.

Barista's note: One advantage of having POTUS in town for a couple of weeks was that it resulted in a cohort of national reporters sitting around with nothing to write about, no doubt being pestered by their editors suffering back in the polar vortex to get off the beach and actually file a story or two. Thus, we saw a series of big league newspapers filing stories about Hawaii, including this marqee piece in the New York Times about the anti-GMO measures, "A Lonely Quest for Facts on Genetically Modified Crops."

At the Ag Conference, we discussed the possibility of a lawsuit being filed against Kauai, since it seems to be the locus of the battle: unlike the Big Island, there actually are seed companies who do GMO-ish stuff on Kauai.

And the ordinance? Well, not only is it laden with legal problems. When he vetoed the bill, the Kauai mayor waived attorney-client privilege and released the County Attorney's legal memorandum outlining all of the problems. As we mentioned at the Conference, that memo is a virtual -- if partial -- roadmap for plaintiffs on how to sue the County and win. The Kauai county council eventually overrode the veto, after an unusual last-minute substitution of a councilmember who then cast the deciding override vote.

On Friday, the other shoe dropped, and several seed companies filed a lawsuit in U.S. District Court in Honolulu. Here's the Complaint for Declaratory and Injunctive Relief, in which the plaintiffs are represented by the legal A Team of Paul Alston and Margery Bronster (my co-presenter at the Ag Conference on this issue). The claims include federal and state preemption, equal protection, due process, a "taking or damaging" under the Hawaii takings clause, dormant commerce clause, trade secret disclosure, special legislation, the Kauai charter, the open meetings law, and (get this) "unconstitutional interference with the conduct of foreign affairs." Oh my.

The Kauai Eclectic blog notes:

The plaintiffs are seeking attorneys fees and costs. Six attorneys are representing the plaintiffs, some of whom reportedly bill at about $600 per hours.

The complaint mirrors the concerns some of us have repeatedly raised about the bill, which began with serious weaknesses and was furthered impaired when “red shirt” activists pushed it through without proper scrutiny of the many amendments.

As I've stated previously, if the companies prevail, which is likely, we will be left with nothing but a huge legal bill and legal affirmation that the companies can continue as they have been.

And all because Hooser championed a badly flawed bill for his own political gain.

We've seen similar situations before. For example, back in the day we represented an Oahu property owner who had all the permits it needed to build a 200-home residential project. But after the public got up in arms about it and by initiative downzoned the parcel from Residential to Preservation (a measure we got invalidated in court because you can't zone property by initiative under Hawaii law), and the City council then adopted a similar ordinance over our takings objections, the City ended up having to eat a fistful of dollars (and we're talking many dozens of millions) for the privilege of having passed the ordinance.

Here, we've no doubt Kauai will also hire (at great public expense) its own team of heavy hitters as usual. Meaning the only guys who likely end up suffering will be the beleaguered taxpayers of Kauai, many (if not most) of whom aren't all that fired up about the GMO issue. 

Are we going to be following this latest case? You bet.

PDF: Complaint for Declaratory and Injunctive Relief, Syngenta Seeds, Inc. v. County of Kauai, No. 14-cv-00014