While a federal magistrate judge has ruled against Kauai County and ordinance 960, it appears that this issue is far from being over. While no final decision has yet been made, item C 2014-248 on the upcoming Council agenda of September 17 states “provided that Special Counsel has agreed that throughout the appeal process Special Counsel will only bill the County for costs and not charge for legal fees beyond the $210,000 previously authorized by the Council.”
In essence this means the law firm of McCorriston Miller Mukai MacKinnon LLP is offering to conduct the appeal for free other than what the County has already allocated ($210,000) and some miscellaneous hard costs estimated at $12,750.
This very generous offer combined with the law firms high level of expertise, motivation and confidence that the core legal issues favor the county position, translate to an offer that I believe would be irresponsible to refuse.
The federal judge ruled that the county of Kauai does not have the authority to protect the health and environment of our community from the long term impacts of the intensive application of Restricted Use Pesticides.
According to this court decision, Kaua’i County is not allowed to step in to protect its citizens nor the environment from the impacts of pesticide use, misuse or abuse – even when the state has failed miserably in its duty to do so.
This ruling by Judge Kurren represents a win by industry. I am sure the corporate executives in Indianapolis Indiana, Ludwigshafen Germany, Basel Switzerland and Johnston Iowa are “high-fiving” each other over beating our little island on this round, but the win to be sure is ultimately a hollow one.
Residents of West Kaua‘i have been complaining to the State about pesticide drift and the impacts for over a decade.
Despite repeated requests, the State refuses to fund additional inspectors.
It takes 2 to 3 years for the State to complete investigations of pesticide abuse and the State birth defect registry has not been updated since 2005.
Ordinance 960 was a modest attempt to deal with those concerns by requiring disclosure, buffer zones and a study to determine health impacts.
There is no shortage of red flags that point toward negative impacts of this industry and the need for disclosure, buffer zones and a health study.
- There are medical doctors who treat expectant mothers and deliver babies at the Kauai Veterans Memorial Hospital in Waimea who believe there is 10X the national average of a rare heart defect among their patients with newborn children. This is part of the public record.
- On several occasions students, teachers and staff have became ill at Waimea Canyon Middle School and at Kekaha Elementary School after or during times when pesticides were being applied in adjacent fields.
- There was a “die-off” of over 50,000 sea urchins verified by local aquatic biologists on the shore subject to pesticide runoff.
- Approximately 150 long time residents of Waimea Town are suing DuPont Pioneer because of negative health impacts they believe are a result of the companies’ pesticide applications.
- A majority of Kauai pediatricians, the Hawaii Nurses Association, the Hawaii State Teachers Association, Local 5 Hotel Workers and many, many other groups and organizations submitted testimony in support of Bill 2491.
Yet the State of Hawaii’s response to these concerns has been abysmal to non-existent.
There is no State or Federal law expressly denying the County authority to regulate pesticides, and until now no court has ever ruled on the issue with regards to Hawaii’s situation. In other words there is no State or Federal law that says Kauai County may not regulate pesticides.
Judge Kurren concluded that even though there is no State or Federal law that says the County may not regulate pesticides, the State intended to retain exclusive authority over pesticide regulation. In other words, even though the State did not say it directly, that is what they meant to say.
Judge Kurren also said, “This decision in no way diminishes the health and environmental concerns of the people of Kauai.”
The issue is far from over and while an appeal will take a year or more to run its course there are many other additional ways to pursue the same ends. To be clear, our community’s resolve to protect the health and environment of our island home has likewise not been diminished but only strengthened.