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GMO ban spurs farmer to file lawsuit

Updated: 
March 5, 2014 - 12:05am

An unnamed farmer has filed a lawsuit seeking relief from requirements of Hawaii County’s recently enacted ban on genetically modified crops.

John Doe v. County of Hawaii was filed Monday in Hilo’s Third Circuit Court and seeks relief from the registration provisions of the GMO ban, which were required to be fulfilled by today.

Signed into law Dec. 5, Section 14-133 of Article 22 of the Hawaii County Code requires that “all persons engaged in any form of cultivation, propagation, development, or indoor testing of genetically engineered crops or plants of any kind shall register annually beginning on or before March 5, and shall pay an annual registration fee of $100 per location, payable to the director of finance.”

Penalties for violating any provision of Article 22 include a fine of up to $1,000 for each day the violation is committed or continued.

According to the complaint, filed by Honolulu-based attorneys Margery S. Bronster and Rex Y. Fujichaku, the plaintiff cultivates a variety of papaya that has been genetically engineered for resistance to the ringspot virus, a disease that was responsible for the decimation of the isle’s papaya industry in the 1990s.

Despite the fact that papaya is exempted from the ban, growers are still required to register with the county. The suit claims the registration and disclosure process is “burdensome and intrusive,” requiring commercial growers of genetically engineered crops to submit “confidential information and trade secrets to the county Department of Research and Development, including the exact locations of these crops (which are indistinguishable visually from conventional crops); the name of the owner and/or lessee of the property; and detailed, commercially valuable and proprietary information regarding the grower’s breeding, production and cultivation practices.”

Additionally, the complaint says that third parties would be able to obtain that information “unless the County’s Department of Research and Development makes a discretionary choice to withhold this information because its disclosure would ‘frustrate the ability of the County to obtain accurate information.’”

“There are a variety of reasons that Bill 113 should be held invalid in its entirety,” the suit alleges, “including because its ban on testing and cultivation of (genetically engineered) crops sharply conflicts with federal and state law.”

However, the lawsuit concerns only the registration/disclosure provision, given today’s registration deadline.

“Plaintiff brings this action because he reasonably believes that, if he is forced to provide his confidential information to the County, he faces a genuine risk that the information will be disclosed to third parties and cause Plaintiff irreparable harm from vandalism, intimidation, and misappropriation of his trade secrets,” the complaint reads.

Bronster, who served as Hawaii Attorney General from 1995-1999, told Stephens Media Hawaii via email Tuesday that “At this moment, we are not in a position to provide comment beyond what is stated in the complaint. We are awaiting the next steps with the Court.”

Councilwoman Margaret Wille, who sponsored the GMO ban, had not returned a call seeking comment as of late Tuesday afternoon. A secretary in the county Department of Research and Development said that the department’s director and deputy director would not be available to respond to questions until Wednesday.

Hawaii County Corporation Counsel Lincoln Ashida said that he had assigned Deputy Corporation Counsel Michael Udovic as lead counsel on the suit, and he and his team were working to evaluate the complaint’s claims.

As far as today’s deadline for growers to register, Ashida said it would be up to the plaintiff and his or her attorneys to seek a stay of that deadline, if they so choose.

“We still have to see what their arguments are,” Udovic said. “We’ll see if we’re going to file an opposition of some sort, which I’m sure is what they want, but we’re going to have to wait and see.”

In a press release emailed Tuesday morning, a spokeswoman for Hawaii Farmers &Ranchers United wrote that her group strongly supports the suit, which was “brought by farmers who are frightened by the potential implications of complying with these unjustified and intrusive requirements — specifically harassment of their family and employees and vandalism of their operations by anti-technology activists.”

Email Colin M. Stewart at cstewart@hawaiitribune-herald.com.