Bill 2491 becomes law

Bill No. 2491, Draft 2 - A BILL FOR AN ORDINANCE TO AMEND THE KAUA’I COUNTY CODE 1987, AS AMENDED, BY ADDING A NEW ARTICLE 22 TO CHAPTER 22, RELATING TO PESTICIDES AND GENETICALLY MODIFIED ORGANISMS (Laid on Table 11/07/2013)

The Kauaʻi County Council today voted to override the mayor's veto of Bill 2491 - 5 to 2 - in another dramatic turn of events in the GMO struggle unfolding on the island.

Five votes were needed to override the veto, and up until yesterday the council stood at six members, but just yesterday Mason Chock was appointed to fill the vacancy and it turns out that he cast the deciding vote. After voting for the bill last month, Nadine Nakamura resigned from the council to become the mayor's managing director, removing one likely override vote from contention.

After having signaled that they would vote on the override one member short, the council on Thursday they voted to table the veto override vote; on Friday they appointed Mason Chock to the council; then on Saturday they overrode the veto.

Meanwhile, spurred by all the 2491 hubbub, earlier this week at the state level there was an announcement of a new "good neighbor" program (PDF) consisting of entirely voluntary notification, reporting, and the establishment of buffer zones.

The county has nine months to prepare to implement the new law and there are sure to be many twists and turns between now and then.

Links:

• Kauaʻi Bill No. 2491, Draft 2 (final version)
• Kauaʻi Council special meeting agenda

Kauaʻi Bill 2491 vetoed

After taking the maximum time allowed the mayor vetoed Kauaʻi Bill 2491 (PDF link) yesterday in a move that surprised many, releasing a 76 page report detailing the decision (PDF link) containing the mayorʻs statement for release, the transmittal from the council to the mayor upon passage of the bill, and the until now secret legal opinion on the bill from the county attorneyʻs office.

“I have always said I agree with the intent of this bill to provide for pesticide use disclosure, create meaningful buffer zones and conduct a study on the health and environmental issues relating to pesticide use on Kaua‘i,” stated the Mayor. “However, I believe strongly that this bill is legally flawed. That being the case, I had no choice but to veto.”

I am hardly qualified to assess the legal opinion but regardless of those details what I would very much like to understand is how the process broke down here. Specifically, since the bill was introduced four months ago (June 26) and from the beginning was clearly a major public issue for the county, why didn't the county attorney, the mayor, and the council work together to draft something that met the technical legal requirements of the intended goals which the mayor says he supports?

The council worked with attorneys as well as the mayor throughout the process so the possibilities seem to be:

1. The council was never advised how they might fix the supposed legal flaws.
2. The council was advised but refused to accept suggested changes for legal purposes.
3. It is impossible to achieve the goals of Bill 2491 at the county level.

The county attorney opinion consists of four sections - an Introduction, Legal Issues, Specific Challenges, and a short Conclusion. Why is there no Suggested Amendments section? Just as one example, there is an issue related to the bill assigning enforcement responsibility to the Office of Economic Development: surely the opinion could have recommended to the council a more suitable department to handle implementation.

The legal opinion released is stamped as confidential: what are the consequences of publicizing the opinion?

1. Does this effectively subvert the council overriding the veto because now the county is in a much compromised position should it enact the bill, having disclosed all the potential flaws and anticipated legal attacks it fears?
2. Did the mayor unilaterally leak the confidential document to support his veto, or consult with if not get approval of the county attorney and/or county council (who had already decided against disclosure)?

The mayor concludes: “I would like to state that, despite this veto, I absolutely believe that the spirit of 2491 will be implemented on Kauai in accordance with applicable federal, state and county laws and regulations,” he wrote to the council. “It would be my preference to achieve the goal through cooperation and understanding, instead of through adversarial legal action.” Isn't a veto adversarial?

See Kauaʻi Eclectic blog coverage of the veto and the response for more details.

Given the mayor's statement of agreement with intent I have to conclude that either county government is either incompetent to write legislation, so encumbered by state and federal law as to be completely disempowered, or both. Kauaʻi seems to have a record for bungling popularly supported initiatives and getting into legal hot water, possibly causing more damage than good. Another example would be management of vacation rentals (Transient Vacation Rental) as documented in the Abuse Chronicles also at Kauaʻi Eclectic which I believe has been through three iterations becoming increasingly dysfunctional.

I believe we have some good people on the council so is the problem that the system itself is broken, too many layers, too risk averse, with too much complexity?

www.kauai.gov is down

The Kaua'i county web site appears to be completely down tonight.
No idea if they are even aware and without the site I don't know who to notify.

UPDATE: The site now back up as of the following morning. No word of what happened that I can find.

http://www.kauai.gov/ says,

We're sorry. The Web address you entered is not a functioning page on our site. >> Go to Kauai County's Home Page <<

(which then links to the same broken page from "Home" as well)

Try an URL like http://www.kauai.gov/oops and you get,

DotNetNuke Configuration Error Domain Name "[DOMAINNAME]" Does Not Exist In The Database  DotNetNuke supports multiple portals from a single database/codebase. It accomplishes this by converting the URL of the client browser Request to a valid PortalID in the Portals database table. The following steps describe the process: (followed by lots of internal technical instructions)

Kaua'i Civil Defense web site is down as well: www.kauai.gov/civildefense/‎
I was just thinking recently how antiquated it is that civil defense response to emergencies is still broadcast on radio and TV. This isn't idle speculation: I do not own a radio anymore and the TV will only be used for digital, Blu-Ray, and DVD, so I won't be able to tune in unless I buy a radio. I was hoping they would provide information on the web but with service like this maybe that isn't a good idea after all.

Kauai Bill 2491 passes

The bill passed in the middle of the night, earlier today after a marathon special council session. The controversy will undoubtedly continue, there may be lawsuits, enforcement issues, and so forth, but at least we should get some information disclosure and perhaps that will enable some clarity and transparency that seems much needed.

The video is quite instructive (I watched the last 45 minutes, see link below) as the long night meeting in the end brought out the very human side of the process. Following 17:55 there is a distinct turning point when the patience of many in the room suddenly runs thin, order is firmly but gently restored by the chair, and from that point there is a momentum to wrap up with thank-you's and move to a vote.

First off what's striking is how gut-wrenchingly emotional this entire process is. I have to say that objectively looking at this bill it requires what appears to be quite routine county oversight of five businesses yet the tone of the room is as if World War Three is hanging in the balance.

Overhanging the whole thing is a county attorney opinion about the bill that the council has chosen not to make public. As a result, there are references in the proceedings to unspecified legal concerns that they are unable to discuss publicly. It's difficult to have useful public debate when there are important concerns held in secret as part of the process. Why these legal issues were not mitigated through the amendment process I have no idea.

Another unfortunate circumstance surrounding the bill is that in theory the state of Hawaii should already have responsibility for this matter but in fact has been doing so little for so many years that the county was forced to take this on itself if anything was to be done at all. Yet for the county to act within the purview of state responsibility appears to require a Memorandum of Understanding. Whether the bill or the MOU comes first seems to be a bit of a chicken-and-egg problem but since the mayor has already started dialog with the state - and was urging delay as those discussions seem to take considerable time. With this bill in the works now for many months I would think a MOU could have been forged long ago, or perhaps an MOU of intent to produce an MOU. Again, this is all part of an opaque process so I won't speculate beyond remarking how clear-as-mud the whole thing is.

With the bill now destined to become county law (the mayor has pledged not to veto it) no doubt the county, the state, and of course the affected big ag companies here will doubtless be having many strategy meetings. By no means does passage mean the Bill 2491 story is over!

Coincidentally in Washington DC it seems that also after a lot of emotion the Congress finally agreed to fund the government and restore federal services that have been shutdown over their wrangling. This may be a week for reconciliation.

More details:

• Special Council Meeting video can be found here: click the County Council section look for Special Council Meeting, 10/15/13, 18h 37m; click on Video link there.
• Joan Conrow
• Andy Parx
• The Garden Island

Dr. Pang on GMO in Kaua'i

Today I learned about Dr. Pang, watched his recent testimony on Kaua'i about Bill 2491 and GMO, and found it compelling. While 100% of what he says may not be perfect, this overall message is the best thought out and well reasoned I have yet to seen by far. It's must-see (linked above) if you care about this issue.

Dr. Pang makes a number of excellent points that I won't attempt to condense and summarize here - he is the expert and speaks for himself most capably.

Speaking for myself, not an expert, my key takeaway that I found convincing is his appeal to disclosure: the first thing that we must do is to get the companies doing this work to log and report on their activities. The reasoning is quite straightforward: without solid information it's impossible to do any kind of scientific investigation at all. Only when we have actual data can we begin to look into claims of harm as well as exonerate the same activities from culpability. Absent reliable data, everything remains unclear, nothing can be proven one way or the other. (Again, this just touches on one part of he presentation and following Q&A in the video, but it's such a fundamental point I think it's worth focus.)

He anticipates and counters a number of obvious possible objections, but the bottom line here is even if it is imperfect data, even if the county cannot rigorously enforce accurate and full disclosure, collection of data enables science going forward. We can improve on data quality and quantity, compliance over time but the longer we delay we lose the opportunity to gather data at all in the present. Surely any responsible business already has all of this data and more internally. To the degree details are confidential the county should be trustworthy to keep it private, or only publish digests to interested parties such as researchers that would not reveal proprietary business intelligence inappropriately. Providing data about operations to the county cannot be a major expense at the scale these companies operate, nor is it at all a threat to their business.

Also the analogy Dr. Pang draws to sugar cane burning oversight on Maui seemed relevant and promising. Companies are obliged to log and report whenever they plan to burn cane fields, an essential part of the growing cycle for sugar cane. They provide the county details such as location, area, wind conditions before and after, and so forth. The county in turn can not establish buffer zones or warn citizens as appropriate given the information. Relating this back to GMO and Bill 2491, Dr. Pang aptly noted that ideally the county should get disclosure first and based on that information it could better set effective buffer zones rather than pre-establish buffers in the bill itself; however, he concurred that if the situation was deemed urgent then early setting of buffers arbitrarily was reasonable.

Additionally, Dr. Pang recommended (which Bill 2491 does not do) getting disclosure of the specific GMO mutations being released into the environment. This makes good sense as basic data gathering practice. There was confusion in Q&A, but I believe what this means is disclosure of the type of GMO product (for example, in the case of corn, is it herbicide-resistant or insecticide-producing).

We will see if touching on this topic leads to vociferous responses in the comments: I welcome input so long as it is respectful and backed by evidence cited (see below for my part; naturally, Dr. Pang backs up his statements with citations himself). Should anyone reading this disagree with my takeaway, I would invite them to comment, and only ask for a specific response ("disclosure" below means per Sec. 22-22.4 of Kauai County Bill 2491). Here are a few points I would like to see anybody's best rebuttal:

1. How would reasonable disclosure make the situation significantly worse?
2. If required disclosure is onerous to business, exactly how, and what are the major costs and impacts incurred?
3. Without real data from required disclosure, how can government or independent researchers possibly study the impact of GMO on west Kaua'i communities at all?

Background info:

• Dr. Pang on GMO health concerns
• GMO position paper referenced in the above talk (I don't necessarily "support" this)
• Kauai County Bill 2491 (as amended, latest version as of 2013/10/8) 

Kauaʻi by the Numbers

This island is a microcosm in many ways, small but not tiny. The following statistics are intended to convey a sense the actual scale of the island.

Kauaʻi is a county (the privately owned Niʻihau included) within the state of Hawaii. At the library I found a report that provides a lot of statistics that paint a clear if sometimes surprising picture of this place. Here are some excepts from the 2010 data in the report.

The island of Kauaʻi is 552.3 square miles, with 113 miles of coastline, the fourth largest island in the state. Niʻihau is 69.5 square miles with 90 miles of coastline, twenty miles away.

The population in 2010 census is 67,000, with on average nearly 20,000 visitors (tourists) on island. Nearly one millions visitors arrive per year

Of the resident population, haole (whites) are the dominant ethnic group at 32%, followed by Hawaiian/Polynesian at 20%, Filipino 19%, Japanese 18%, and others for the remaining 11%.

Just over 1% of the population here is homeless, excluding the so-called "hidden homeless" (living with family or friends).

Broadband Internet access (as of 2010) was 59% with 83% having home access. Access is lowest among the older (65 and older) and in the west (where I am staying now).

Electricity here is, I believe, the most expensive in the nation at over $0.40/kWh. The electricity I am consuming is generated at Port Allen by KIUC from burning oil shipped from the mainland by tanker.

Source: "Measuring What Matters for Kauaʻi" [Part I and Part II] by the Kauaʻi Planning & Action Alliance

Toward a Kaua'i Bill of Rights

Thursday evening Kaua'i Rising held an informational event featuring two lawyers from the CELDF talking about environmental challenges to local communities and their strategies and efforts to support people standing up for their rights. The three hour meeting was quite interesting and felt like about half that much time and was embedded in a cultural context with music and Hawaiian style opening and closings.

Kai Huschke and Ben Price from CELDF spoke at length as lawyers who has worked with numerous communities fighting large corporate interests they do not want exploiting their land - energy extractions such as tracking, strip mining, big agriculture.

They also described how the legal and political systems of this country are stacked heavily against local control. I knew well that in the hierarchy of our legal system federal law is supreme, then state, and finally local law, but the obvious effect of this structure had not in so many words occurred to me: local control is systemically quashed. On top of that there is Dillon's Rule which states that municipal law can only legislate matters expressly granted to it by federal or state law, or enshrined in the charter of the municipality. (For more than the preceding simplified sketch of the legal terrain, see the CELDF site resources with in-depth and authoritative legal information.)

Prospects may sound bleak for a grass roots reversal and in some ways that is so. On Kaua'i the hot button topic is GMO because the former cane sugar fields have been turned over to GMO seed production and experimentation, exploiting the year round growing conditions and plentiful water here. For more info on GMO issues see for example hawaiiseed.org.

John Dumas played a beautiful opening set while people assembled and then closed the meeting with a heartfelt rendition of Amazing Grace [download].

The political and legal strategy is complex and I won't attempt to describe it here much less evaluate options. One key point to understand about this meeting is that where it was crystal clear where the CELDF comes down on these issues, they were equally clear in their role in coming here being to advise options for the community to chose action. In a nutshell, there are three options to choose from:

1. Do nothing: you get the status quo and all prospects for escalation by corporate interests.
2. Regulate within the existing legal framework: you may get some concessions but not stop anything, and by doing so legitimize the activity and thereby contribute to its expansion.
3. Fight back: exactly what forms this takes and what the likelihood for victory may be remains to be seen. The glimmer of hope on the legal front is an argument built on the principles of human rights which government is responsible to protect and serve, not subjugate. Ultimately, it's a moral responsibility as well for the people to protect the land and nature.

In closing I would like to capture some excepts from the meeting out of context that I think best convey the spirit of it.

• Big corporations become The Machine of Endless Production of More
• One community resisting corporate exploitation was labeled by law enforcement as domestic terrorists, so they had T-shirts made up and wore them proudly.
• The legal strategy CELDF helps crafts becomes an organizing strategy.
• US law is based on English law which developed to support the process of colonization, so it encourages expansion of empire, wiping out local customs and practices to be replaced with by the new masters of newly acquired territories.
• The US constitution is largely a collection of commerce and property law. (The Bill of Rights is separate.)
• The CELDF used to carefully review corporate applications for extractive operations and point out all the errors and flaws to get them rejected. However, they soon stopped doing this because the corporations would just make exactly those corrections and refile. In effect, the CELDF realized they were providing corporations free legal services and legitimizing their operations.
• Responding to a comment wishing more people were at the event (I'd say it was less than 100), a wonderful auntie stood up and said, "The people who need to be here are here."
• Ben Price related a wonderful quote from working with an indigenous community. Upon learning about Dillon's Rule that municipalities are completely subject to federal and state control, an older Native American in attendance said, "So municipalities are the white man's reservation ... only he doesn't even know he's on a reservation, too."

Action for Kaua'i Rising

Today I had planned to go to the beach, up until 10:30pm last night that is when a friend here forwarded me email about a Kaua'i Rising action to petition the county council at a public meeting this morning to adopt a Kaua'i Food Bill of Rights. Clearly this was the place to go. And then, on the way there, who should I see at a Kapa'a bus stop but my friend (who does not have a car) it turned out that we went to the event together and he kindly introduced me around.

On Kaua'i because it is small and isolated and so many people come here for such different reasons it seems that modern challenges with food, energy, economics, and so forth come to a head quickly and in more extreme ways than on the mainland. This is, of course, also an enormous opportunity.

Gathering at 8am ahead of a county council hearing where a large number of signed petitions were to be presented I met a lot of the people attending the action. The diverse gathering was about half what would be characterized as counter-culture people, a number of retired persons, and a few locals. I met numerous good people who quickly made me feel welcome and had some good conversations about these difficult issues. Some council members came out and met with people individually ahead of the formalities, and even the chief of police made an appearance.

The action began with music - drums and singing; and included petition collecting, signs like "GMO Free Hawaii!", and a lot of impromptu talk story. At around 9am a contingent went in to present the petitions and address the council while the signs and music continued outside.

I met a young lady who left her career in marketing to come here and run a small business and now describes herself as an orchestrator. I met a massage therapist who told me that Kaua'i is a remnant of the lost continent of Lemuria. I met the web site administrator for the Kaua'i Rising web site.

Afterwards, a lady who had gone in described the proceedings. She spoke softly and with such a loving tone about the disparity between the very human energy of this action and the petition and the people behind it against the calculated complexity of county council procedures and rules. "They spent twenty minutes deciding how we could use the eighteen minutes we were allotted to speak." It was a striking example of modern government inefficiency and how they become entangled in their own rules. By contrast, she offered that what was needed was more "speaking from the heart" which was exactly what all those people were there doing in their own way, myself included.

Next steps: there is a meeting tomorrow (6:30pm, May 2, in Kapa'a at The Children of the Land) to present a draft of the Kaua'i Food Bill of Rights for public input that I intend to attend to learn more about what specifically it entails. I will postpone touching on the issue and this strategy here, focusing instead on the gathering and that experience.

Update: read the Kaua'i Rising post following today's event here with details of Thursday meeting.

Update: Garden Island story on this event is here. I happened to be standing behind the "PETITIONS DROP OFF" sign in the 3rd photo labeled "collect FOOD BILL.jpg" and unrecognizable.

Update: Interesting critique of the action - I did not have a chance to go inside and observe the actual meeting as the room filled up - from Joan Conrow, my favorite local investigative blogger.