Federal Legal Case
The Federal case brought by the Monsanto Group attempting to invalidate the general election results
It was called the “The Maui Miracle” when a citizen’s ballot initiative was approved on November 4, 2014. The voters called for a moratorium on the production of genetically engineered organisms in Maui County until independent safety and environmental impact studies are undertaken and completed. Under the approved ordinance, the chemical and biotechnology companies seeking license to develop these new life forms on the Hawaiian Islands would fund these studies.
Anticipating strong resistance from the industry who had spent millions of dollars during the weeks leading up to the election (the most ever spent on trying to defeat a local ballot initiative in U.S.History) the originators of the ordinance, went to State Court asking for Judicial Relief (see complaint here).
The industry opponents a day later, filed their own complaint in Federal District Court, asking the same federal magistrate judge, who had invalidated local ordinances on to other islands to invalidate Maui County’s election result as well. 4 days later, joined by the same public officials who had campaigned against the measure in the election as well the judge agreed together to a “stipulated order” PROHIBITING the county from certifying the election result and implementing the ordinance (as mandated by State Law). (see copy of the court order here).
The problem with such act (on the magistrate judge’s part) was that he was essentially using questionable federal authority to intervene in a state issue, involving state election laws – and in this instance important state constitutional questions, as well. Of even greater concern was that one man, who did not even reside in the county, was being asked to overturn the legal result of an election at the request of both parties who were co-defendants in state action brought against them.
The dictionary defines this as collusion “a secret understanding between two or more persons to gain something illegally, to defraud another of his or her rights, or to appear as adversaries though actually in agreement”.
In order to assert the rights of the majority of the people of Maui County who approved the passage of the ordinance, the Shaka Movement was forced to seek intervener status in the case of Monsanto vs Maui as it was clear that their (and the people’s interests) would not be served by the county officials – who had already joined the industry in asking the court for relief. (see Shaka Motion to intervene here).
In addition to asking the court for recognized legal status in the federal litigation the Shaka Movement through its lawyers (on behalf of its supporters, and the people of Maui) filed a motion for the federal court to either abstain from deciding the case, or dismiss it all together leaving the issues to be resolved in the state court proceeding where they belong and were first raised. (see Shaka motion to dismiss or abstain).
On December 12th a hearing was held and on December 15th an order was issued granting the Shaka Movement (and the 5 citizens who launched the ballot initiative) to enter as full parties in the litigation, where their own recognized interests would be defended by their own lawyers. (see Judge’s decision) .
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1-19-15 Update to Federal Court Case
An Essential Question of Jurisdiction
A central issue in the case of the SHAKA Movement, Citizens of Maui Vs. Monsanto and Dow Chemical relates to rights guaranteed under the Hawaii State Constitution which the industry is seeking to invalidate using an argument that Federal law is superior to (and therefore can be used to “pre-empt”) a State law. While there are certainly instances where this can be true, in this specific case it is not.
The Constitution of the United States specifically addresses the delineation of powers and authority as well as restrictions on power and authority held be the government. The Bill of Rights is an example of limits on government authority -where for example laws prohibiting freedom of assembly, freedom of speech and freedom of religion are prohibited.
The Constitution specifically assigns all “law-making” authority to Congress alone, the legislative branch. This means that policies set by either the Executive branch -such as policies of FDA (food and drug administration) DOA (Department of Agriculture) or the EPA (Environmental Protection Agency) – or the judicial branch are not “laws,” according to the Constitution. All rights, not specifically granted to the Federal Government by the U.S. Constitution are retained by the States.
In attempting to invalidate the results of an election by treating agency policies as if they were law, the industry is asking the court to give it power contrary to every principle of democracy and the right to govern as defined by the First Article of the Hawaii State Constitution, which states “All political power of this state is inherently of the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority”.
The industry’s maneuver in “removing” the case involving exclusively Hawaii State election laws, county ordinances, and Hawaii State Constitutional issues, SHAKA believes to be wholly improper. To correct this a Motion has been filed asking the Federal Judge assigned to the case, to order the matter returned to the state court where it properly be adjudicated under the state laws which apply. A copy of the Motion and legal arguments presented by SHAKA’s lawyers is available here.
2-4-15 Update to Federal Court Case
The Five residents of Maui County, Dr. Lorrin Pang, Mark Sheehan, Lei’ohu Ryder, Bonnie Marsh, Alika Atay, and the SHAKA Movement (collectively “SHAKA”), the original proponents of the GMO Ordinance on Maui, remain outraged at the County of Maui’s decision to take “no position” on defending the Ordinance and its justifications made to the press that the County wanted to stand aside and allow SHAKA to defend the Ordinance.
To correct the record, SHAKA in no way wanted or encouraged the County to stand aside in the federal lawsuit. To the contrary, SHAKA has encouraged and invited the County to defend the Ordinance as it is obligated to honor the wishes of Maui voters. Over 23,000 voters approved of this Ordinance and the County is obligated to protect the wishes of its electorate. Moreover, under the Hawaii Constitution, the County of Maui is obligated to conserve and protect Maui’s public trust resources, “including land, water, minerals, energy sources, and shall promote the development of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.” Haw. Const. art. XI, § 1.
In SHAKA’s opposition to the Motion for Summary Judgment filed by Monsanto, SHAKA laid out in detail the potential irreparable harm to Maui by not enforcing this Ordinance, including the potential health effects by allowing GMO operations to continue unregulated in the County of Maui. Maui citizens have complained to public officials about the pesticide drift created by these operations, which are located near schools, small towns and businesses. SHAKA’s brief filed with the Federal Court is available for review here County of Maui’s Statement of No Position re Plaintiff’s MSJ and here SHAKA’s MIO to Pltfs’ MSJ and Request for Rule 56(d) Continuance 1-30-15, SHAKA previously objected to the County’s initial decision to enter into an agreement with Monsanto to suspend the certification of the election results and to delay implementation of this law. The County’s latest actions to take “no position” in the case further frustrates the will of Maui voters and is directly contrary to the County’s duties under the Constitution. It is time for the County to step forward and defend the law that Maui voters demanded and override the interests of big corporate interests led by Monsanto.
2-25-15 Update to Federal Court Case
On March 10 at 9:00 AM the Federal District Court in Honolulu will hold a hearing on a motion (filed by Shaka Movement’s attorneys) asking the court to dismiss the case of the Biotech Industry vs Maui County, based on a variety of legal and evidentiary arguments. The memorandum filed with the court on the issue can be read and reviewed here.
In the essential part of our presentation to the court, we explain – “Maui citizens adopted a voter initiative to protect Maui County from harms to the environment and local health. These are fundamental rights protected under the Hawaii Constitution. The central issue in both cases is whether the County has an obligation to adopt this law under Hawaii law, recognizing the County’s police powers. SHAKA has a significant interest in assuring that the County actually implements the law, as SHAKA devoted significant time and resources facilitating the law’s adoption and is in large part responsible for its adoption.”
“The local issues at stake in this case are not merely “technical violations of the Maui County Charter,” as the County claims. Rather, the issues center on (1) the constitutional and statutory separation of power between the State of Hawaii and its municipalities, (2) the ability and obligation of the County to protect the environment and human health,; (3) whether state pesticide and plant quarantine laws were intended to prevent the County government from regulating GMO activities. (4) The effects on traditional Hawaiian Culture and the environment for open air genetic experimentation conducted by multinational corporate interests. (5) The Constitutional Right, under The Hawaii State Constitution “to a clean and healthy environment” and for “any person” to “enforce this right against any party,public or private, through appropriate legal proceedings”.
3-11-15 Update To Federal Court Case
On Monday night, March 9th, just hours before the court hearing that had been scheduled on December 16, Judge Mollway issued a continuance (postponement) until March 31. The judge’s reasons for doing this were because it somehow came to her attention that there were two bills before the State legislature seeking “to prohibit county ordinances abridging the rights of farmers and ranchers to use agricultural practices not prohibited by federal law.” The judge rhetorically asked, “Is there any dispute that the enactment of either of these bills would nullify the ordinance at issue in this case?”
With the help of our allies at the Center for Food Safety, we were able to come to court the next morning with a letter from Senator Russel Ruderman (chair of the State Senate Committee on Agriculture) explaining to the judge that the two bills she sited were “effectively “dead” for this legislative session.” A copy of the letter is available here.
As the hearing progressed, Judge Mollway requested two additional briefs from our counsel, which we consider to be of significant importance. The first is our response to the County of Maui’s motion (joining with the industry) asking the Judge to dismiss SHAKA’s complaint and case against the industry (for the harms they are inflicting upon the public health and the public trust resources of Hawaii) as well as the county officials (for their failure to certify and implement the citizen’s initiative approved in last November’s election). A copy of our brief in response is available here.
Secondly, the judge asked for a 2500 word memo, just from our lawyers, on the harm of keeping in place the injunction the industry and the County conspired to ask the federal court to order on November 13, 2014 (9 days after the election); An order, by federal authority, enjoining the County from “publishing or certifying, enforcing, or otherwise acting upon the ordinance.” The federal court, basing it’s judgement upon the “stipulated agreement” between the County and the industry, ordered that this prohibition would remain in place “until March 31, 2015, or until further order of this court.”
The memorandum that Judge Mollway requested will be the first opportunity that we will have to bring to the court the issue of “harms”, which are the very foundation of the ordinance we together passed, and the attack on the wellbeing of the people of Hawaii, (our soils, our waters, and our future) represented by the bioengineering activities of Monsanto and Dow Chemical and their associates in the biotechnology chemical industries. This brief is due by Friday, March 13, and will be available on this website at that time.
The memorandum in opposition to Maui County’s motion to dismiss SHAKA’s case includes the following:
“The rush with which the County and the Industry have sought to invalidate the Ordinance in the Federal Court action does not support granting this Motion. All the agreements to dispose of this case in an expedited fashion were made between the Industry and the County before SHAKA was allowed to intervene and state an objection. The Industry and the County never contacted SHAKA regarding its position on the expedited briefing schedule and the injunction, despite being aware of this pending State Court action and SHAKA’s interest in the Federal Court action. Simply because the Industry and the County are seeking to terminate this case in four months does not justify dismissing the State Court action and giving greater weight to the Federal Court action.“
“The County’s actions and statements since the Ordinance was first introduced under the voter initiative power make plain that the County does not “and will not” support the Ordinance. Although the County attempts to argue that it “had no opportunity to enforce the ordinance because it has been subject to the restraining order issued in the Robert Ito Farms case[,]” this is an overstatement. The County itself agreed to a stipulation with the Industry subjecting the County to the restraining order. The County enjoined itself.“
“Ultimately, it is the County’s job to enforce ordinances that are adopted by its electorate. This is regardless of whether County officials oppose the law or whether the officials consider the law “controversial.” Once the Maui electorate approved the Ordinance into law, the County was obligated to certify the election results approving the Ordinance and properly implement the law. The County refused to implement the Ordinance, so SHAKA sought declaratory and injunctive relief in this action in order to have the Ordinance enforced.“
“Not only did the County have a duty to honor the will of its voters, but it also has a continuing duty to protect the health and safety of its citizens and the natural resources. Under the Public Trust Doctrine, the County has a significant duty to preserve and protect environmental resources for current and future generations. As a result of the County’s inaction and failure to protect these interests, the necessary protections to Maui’s environment, public health, and natural resources demanded by Maui voters have been compromised.“
3-13-15 Update To Federal Court Case
In response to Judge Mollway’s request at the March 10th hearing, SHAKA’s lawyers today filed a brief explaining the “balance of harms” alleged by the industry compared with the harms being inflicted upon our environment and island communities. The issue is central to the injunction that expires on March 31st that till now has prevented the certification of the November election result and the Moratorium we voted for. The document is available here.
In the most relevant section the memorandum states – “At stake is ongoing damage to the environment, potentially serious health problems associated with continuing practices, threats to Native Hawaiian culture and practices, and the integrity of our own election process. These interests are significantly concrete and cannot be remedied by money damages. They are significantly greater than the corporate profits that the Industry relies on to justify the injunction. These harms are, for all intents and purposes, irreparable and imminent”
A more extensive discussion and elaboration on each of these points (referencing testimony submitted to the court in form of declarations by Maui residents and expert witnesses) is contained within the memorandum.
3-19-15 Update to Federal Court Case
On March 19th Judge Mollway EXTENDED an injunction, prohibiting the certifying of last November’s general election result, and the implementation of the Moratorium approved by the Maui Voters until June 15th. In reaching her decision Judge Mollway determined that the potential harm to the industry (of lost profits) was greater than the potential harm to the environment and the health of the people of Maui. Her judgement is completely contrary to established case law. Read Judge Mollway’s decision here.
The Supreme Court of the United States has affirmed “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)
The silver lining in this dark cloud is that by extending the injunction without holding a hearing on the evidence, and allowing SHAKA to argue it’s case on behalf of the Public Trust Resources and residents of Maui County, the Judge committed an errors that provided a basis for an immediate urgent appeal to the 9th Circuit Court; (The Federal Appeals Court that reviews District Court Decisions in California, Oregon, Washington State, Arizona, Nevada, Montana, Idaho, Alaska and Hawaii).
4-2-15 Update to Federal Court Case
On April 2nd SHAKA filed it’s notice of Appeal to the 9th Circuit Court. The Appeals Court accepted the filing and issued it’s order for expedited briefing.
5-1-15 Update to Federal Court Case
On April 30th SHAKA’s lawyers submitted our appeal of Federal District Court Judge Susan Mollway’s decision to extend the moratorium that had been granted by Judge Kurren prohibiting the Moratorium approved by the voters in the November general election from being enacted, and allowing the possible harms to the islands’ residents, and the environment, to continue until June.
The appeal contains an excellent description of the case so far and can be found here. In the relevant sections it states –
The Constitution of the State of Hawaii affirms that:
Each 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 regulation as provided by law.
Haw. Const. art. XI, § 9.
In furtherance of this constitutional mandate, in November 2014, the citizens of Maui voted and approved a local ordinance that establishes a temporary moratorium on the growth, testing, and cultivation of GMOs until an Environmental and Public Health Impacts Study (“EPHIS”) analyzing the key environmental and health effects of GMO operations is completed.
Within days from when Maui voted to approve this Ordinance, Monsanto and Dow filed this lawsuit and entered into an agreement with the County of Maui to enjoin the certification and implementation of the Ordinance until March 2015 (the “stipulated injunction”)—the date coinciding with the Court’s anticipated hearing on the motion for partial summary judgment to invalidate the law. The injunction agreement was based on an uncontested Motion for Temporary Restraining and Preliminary Injunction (“Motion for Preliminary Injunction”) that Monsanto and Dow had filed simultaneously with the Complaint. No hearing was ever conducted on whether Monsanto and Dow met the test for an injunction.
The District Court denied SHAKA’s request for an evidentiary hearing and continued the stipulated injunction, enjoining the County from enacting, implementing, or enforcing the Ordinance. While Monsanto and Dow previously filed a 57-page brief and over 50 pages of additional declarations in support of their request for an injunction, the District Court limited SHAKA’s opposition to a 2,500-word brief, gave SHAKA only three days to prepare the brief, and allowed SHAKA to address only one factor of the applicable four-part “serious questions” preliminary injunction test.
Moreover, the District Court’s application of the “serious questions” preliminary injunction test was unsupported by the facts in the record. Although there are serious questions going to the merits of this dispute, the District Court’s application of the other factors were clearly erroneous and thus an abuse of its discretion. First, the balance of hardships does not decidedly favor continuing the stipulated injunction. At stake for SHAKA and other Maui residents is the ongoing damage to the environment, serious health problems associated with continuing GMO operations, threats to Native Hawaiian culture and practices, and the integrity of the County’s election process. These interests are significantly greater than the corporate profits that Monsanto and Dow rely on to justify the continuance of the stipulated injunction. The harms set forth by SHAKA are irreparable and ongoing, and the stipulated injunction allowing these harms to continue is not in the public’s interest.
6-8-15 Update to Federal Court Case
On June 8th SHAKA, through it’s lawyers filed a counter-lawsuit against the public officials of Maui County for their failure to certify the results of the election where a majority of Maui County residents voted for a Moratorium on the production genetically modified organisms in the county until and unless it can be independently proven to mot cause harms to the public’s health. This action was necessitated by the industry’s (Monsanto and Dow Chemical-Agrigenics) “removal” of the a lawsuit filed by Shaka in State Court into the Federal Court’s jurisdiction and then agreeing together to a Federal Court order preventing the law, approved by the citizens of Maui from being implemented.
As the complaint states “ Under Article I, § 1 of the Hawaii Constitution, “[a]ll political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.” The County has violated this basic principal of self-governance by siding with the GMO Industry against enforcement of the Ordinance thereby undermining the will of Maui voters and ignoring their compelling health and environmental concerns.
The Hawaii Constitution further expressly recognizes that the County has public trust duties to conserve and protect its natural resources for the benefit of its people. In particular, Article XI, § 1 of the Hawaii Constitution provides:
For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and 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.
SHAKA and the Concerned Citizens have suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. These injuries include, but are not limited to (1) the threat of adverse health affects in being exposed to these activities; (2) economic damages in harms to organic and natural farming practices; (3) interference with Native Hawaiian practices that involve natural plants and animals that are being harmed by GMO operations; (4) environmental damage such as deteriorating air quality, odor, and chemicals exposure; and (5) injuries to recreational and aesthetic interests as the GMO operations are interfering with and damaging recreational activities affecting SHAKA and the Concerned Citizens.
The County’s failure to follow the law, certify the election results, and implement the Ordinance has caused harm to Maui residents who voted to approve the Ordinance in the last general election. The County’s actions and inactions have undermined the entire structure and rule of law that our civil society is organized upon, including the very authority under which the County has been granted the right to govern. It is harm that goes to the very foundation of the law, and the responsibility that elected officials have under the Hawaii Constitution and established law.
6-11-15 Update to Federal Court Case
On June 11th Shaka completed the filing of it’s appeal with the 9th Circuit Court (based in San Francisco) asking the court to reverse the decisions of Judge Mollway and Judge Kurren, which are improperly blocking the implementation of the voter approved moratorium. The appeal (found here) asserts that the court order prohibiting the certification of the election results, and the implementation of the ordinance approved by the Maui County voters, was made in clear error, and a serious abuse of judicial discretion.
Among the arguments presented, SHAKA, through it’s attorneys, the brief states:
Monsanto and Dow’s claim that SHAKA’s concerns are merely “speculative” and “unsupported by actual evidence, contrary to the broad scientific consensus, and directly contradicted by the findings of expert government agencies” ignores SHAKA’s entire brief and the evidence in support.
First, the only expert testimony before the Court on the harms caused by GMO operations is the testimony of Hector Valenzuela. His testimony, which is not contradicted by anything in the record, is that GMO operations involve serious risks to the environment and public health by creating ideal conditions for chemical pollution into the environment and public health. These harms are linked to severe health problems, including cancer and birth defects, yet no tests or studies are or have been conducted in Maui County to protect against these harms. Despite having near unlimited resources, Monsanto and Dow have offered no expert testimony to rebut any of these opinions. Instead, all Monsanto and Dow can do is give partial quotations to Dr. Valenzuela’s opinions, leaving out his critical conclusion that “there is an urgent need to conduct studies on the impacts of GMO operations in Maui County as there are potentially serious health and environmental impacts that to date have not been evaluated.” This ultimate opinion central to this appeal remains unchallenged. Critically, Monsanto and Dow fail to offer any reports conducted in Maui showing that what they are doing to Maui is safe. The potential harms are far too grave to simply take Monsanto’s word that these studies exist.
Second, SHAKA and the voters of Maui’s concerns on harm are consistent with the broad scientific consensus. Monsanto and Dow’s position is not. Dr. Valenzuela lists multiple reports from the scientific community demonstrating the harms, including a comprehensive study conducted on environmental and health impacts in Latin America. This study directly links GMO operations to severe health problems to farm workers, their families, and nearby communities.
Since the District Court decided to continue the injunction, the consensus in the scientific community on the health hazards has only strengthened. In March 2015, the World Health Organization published a report authored by 17 experts from 11 countries that glyphosate (Roundup), Monsanto’s number 1 chemical for genetically modified plants, is a probable carcinogen.
Another treatise published this year by over 300 independent researchers concluded that “[c]laims of consensus on the safety of GMOs are not supported by an objective analysis of the referenced literature.” The American Cancer Society now lists glyphosate as a probable carcinogen. The American Academy of Pediatricians is calling for more research on pesticide exposure. The United States Fish and Wildlife Service is phasing-out the planting of any GMO crops on National Wildlife Refuges because of environmental and health problems. Countries across the world are now either banning Roundup or banning GMOs altogether given the dangers that have now been confirmed by the scientific community.
In their Answering Brief, Monsanto and Dow do not dispute how the Ordinance operates. Instead, they offer a sarcastic description, which is insulting to the Maui community who voted in favor of this Ordinance and who have serious concerns for their own health. . . . Maui voters did not vote for this Ordinance out of ignorance, as Monsanto and Dow would like this Court to believe. While Monsanto and Dow may find it advantageous to mock the intelligence of Maui voters, this Court should not.
In this case, the Maui County officials actively campaigned against the Ordinance prior to its adoption by voters, joined Monsanto and Dow in having the case decided in federal court, and immediately entered into a “stipulated agreement” with Monsanto and Dow to enjoin their own enforcement of the law. There were not two opposing sides arguing before the Court at the time the original injunction was granted. Both the County and Monsanto/Dow opposed the implementation of the Ordinance from the start. The original injunction was improper when it was agreed upon, and the order continuing the injunction was clear error and an abuse of discretion.
The District Court’s decision to continue the injunction where there are serious risks to the environment and public health was wrongly decided. SHAKA respectfully requests that this Court reverse the District Court’s Order Extending Injunction and order that the injunction be set aside.
6-15-15 Update to Federal Court Case
On Monday June 15th, Federal District Court Judge Susan Mollway held the hearing she had previously, twice postponed, on the central motions pending in the case. Under consideration were Motions from the Industry, the County and SHAKA.
The Industry was asking the court to grant a “summary judgment” order that would negate the result of the November election, determining that the moratorium called for by the Maui residents as invalid, unenforceable and “pre-empted” by both State and Federal Laws.
The County was asking the Court to dismiss Shaka and the Maui residents’ claims against them related to their failure to certify and implement the moratorium approved by a majority of the Maui voters.
SHAKA was asking the Court to either dismiss both the case brought by the Industry and the County in collusion with one another, or in the alternative to stay further proceedings on the Federal Level until the State Courts had the chance to rule on the issues of their proper jurisdiction.
The fact that there was no real controversy that ever existed between the County’s representatives and the Industry was evidenced by the 11 lawyers representing their shared interests, seated at the same table together.
Arguing on behalf the Industry were lawyers from elite law firms both from the State of Hawaii and nationally from Washington DC. Speaking on behalf of the Industry from Hawaii was Margery Bronster, a former attorney general for the State. Representing the Industry’s interests from Washington was Phillip Perry whose firm Latham and Watkins employs more than 2,000 lawyers internationally and specializes in commercial and corporate litigation globally. Arguing on behalf of SHAKA was Mike Carroll.
Judge Mollway revealed her bias in favor of the Industry’s position through her questioning of the attorneys as well as comments made during the hearing. Choosing to see the issues in dispute merely as “matters of law” (and ignoring altogether the factual disputes and fundamental constitutional as well as public health concerns at issue) she focused the hearing entirely on the issue of Federal or State “pre-emption”. Indicating her intent to follow erroneous judgments made by Magistrate Judge Kurren in cases brought by the Industry against Kauai County and Hawaii County. The judge asserted that we could expect her order within a few weeks.
Of note is that the decisions Judge Mollway appears to be currently relying upon in reaching her conclusions are currently all on Appeal to the 9th Circuit Court of California. Judge Mollway is apparently trying to find a way to not even have to consider the fundamental questions related to constitutional rights, public and environmental health, and the limits of Federal Government Authority inherent in this case. Her clear intent is rule in favor of the industry, following Judge Kurren’s lead and flawed legal justifications, leaving the very controversial matter for the 9th circuit court (based in San Francisco) to resolve.
Depending on how the Hawaii County, the Kauai County and the Maui County cases will be argued before the 9th Circuit, the cases could well go to the Supreme Court of The United States. Properly at issue is whether agency determinations made by political appointees in Washington DC can be used to take away fundamental rights explicitly granted under the Hawaii State Constitution.
7-8-15 Update to Federal Court Case
On June 30th, as anticipated, chief District Court Judge Susan Mollway published her decision invalidating the results of last November’s election and (for now) giving the industry a free pass to continue its harms against the environment and the people of Maui County.
Perhaps trying to convince herself of a decision that will certainly, in time prove to be discredited, Judge Mollway opined –
“None of the motions asks this court to determine whether GE activities or GMOs are good, bad, beneficial, or dangerous. Nor do the pending motions ask this court to address the value of voter initiatives to adopt laws such as the Ordinance. The court recognizes the importance of questions about whether GE activities and GMOs pose risks to human health, the environment, and the economy, and about how citizens may participate in democratic processes”
“This order is not an attempt by this court to pass judgment on any benefit or detriment posed by GE activities or GMOs. Notwithstanding the concern that many people have expressed on both sides of these issues . . . those issues are not before this court on the present motions, and those who want those issues addressed must seek means other than the present order to accomplish that. Similarly not before the court at this time is the question of whether it might be a good idea to allow the County to regulate GE activities and GMOs.”
Despite Judge Mollways wholly unsupported assertions to the contrary, these were precisely the issues before the court. What Judge Mollway did, described in greater details here, was unilaterally (at the industry and certain county official’s request) invalidate the result of an election, disregard rights guaranteed under the Hawaii State Constitution and allow the possibility of severe public health and environmental harms on the residents of Maui County to continue under her authority. Her full decision can be found here.
As explained further here, Shaka’s appeal of these improprieties and clear errors in judgement are already before the 9th Circuit court, on appeal. There remains substantial hope we will find Justice there.
8-31-15 Update to Federal Court Case
This past week, 2 motions were filed with the court of appeals related to our case. One was by us, asking for ALL the issues and separate decisions on appeal be consolidated for the court’s review. The other was a motion by the industry asking the court to dismiss the appeal already filed and accepted, as now “moot” (no longer valid) in light of Judge Mollway’s “final” decision and order. Our response to the industry’s filing (that the county of course is joining or going along with) is clear and instructive.
As we state in our introduction in response to the industry’s filing –
“The decision of the District Court to condone and continue a preliminary injunction without ever holding a hearing, nor considering the grave harms to the community, is not moot. The dangers of the unregulated development of genetically modified organisms (“GMOs”) in Maui, and the potential irreversible harms to Public Trust resources in Hawaii, is the heart of this case.
The District Court ignored these harms when it consented to the original injunction, continued the injunction, and then invalidated the entire democratically approved Ordinance (which was only a temporary moratorium on the practice until independent safety studies could be conducted) within a period of seven months.
The preliminary injunction that is the subject of this appeal was entered into by agreement between two parties that were on the same side of the dispute. On one side, were the Chemical Companies that profit at the expense of Maui’s environment. These entities develop and grow GMOs in Maui that are resistant to the harmful pesticides they sell. On the other side, is the County of Maui that previously denounced the Ordinance before the election. Once the litigation started, the County then chose to disregard the will of its voters by agreeing to an injunction and siding with the Chemical Companies on all issues in the case.
The District Court’s ruling with respect to the preliminary injunction is one of many errors that were made that should be reversed. This appeal is not moot, rather it should be consolidated with the substantive appeal on the merits. Both appeals should be expedited to mitigate the continuing harms caused by the unregulated development of GMOs”
There are actually FOUR DECISIONS on appeal now, coming out of the mess Judge Mollway made in the handling of the very serious issues brought for adjudication. We are asking for the Appeals Court to consolidate (combine) all of these matters and issue one ruling REVERSING (overturning) ALL of Judge Mollway’s decisions
The four decisions ALL OF WHICH can be and are being appealed are (1) Her decision to extend the order (the injunction) prohibiting the county from certifying last November’s election result and implementing the moratorium; (2) Her decision to not remand the case we filed in State Court against the County and the Industry as co-defendants – basically using her presumed authority as a Federal Judge to take away rights granted under the Hawaii State Constitution; 3) Her 55 page June 30th order granting a “summary judgment” in favor of the industry, without even allowing for “discovery” (related to the facts at issue) or holding a hearing; and then (4) her most recent (August 5th) order of final judgement. In all of these instances there were GRAVE errors, improprieties, and determinations that were totally contrary to established rules of law.
Under the law a preliminary injunction is considered an “drastic remedy” that provides for an IMMEDIATE “fast track” appeal to the court of appeals whenever granted, to insure that all the specific requirements for granting such an extraordinary measure were followed. NONE of these procedures or standards were met by Judge Mollway. In fact, the order that she extended (that was the basis of our 1st already granted appeal) was actually agreement between two parties pretending to be in dispute but actually in collusion with one another – The Industry “Plaintiffs” and Maui Government “Defendants”; The agreement Judge Kurren issued as a Federal Court ORDER after the election last year PROHIBITING the election mandate from going into effect. I honestly do not believe anything like this has ever happened before in the history of this country.
As we further refine and develop our case on appeal things will get clearer. Part of the reason it is confusing is that what has happened to this point is so outrageous that it is almost unbelievable. As more and more of what we have to present and explain to the appeals court gets filed I we will keep you updated.
As was presented in the conclusion of the filing made yesterday –
“This appeal involves an unprecedented situation where two parties on the same side of a dispute (one from the government and one from private industry) agreed to an injunction together. The injunction is (i) contrary to the public interest (as expressed in a general election), (ii) potentially causing continued irreparable harm to the environment, and (iii) invalidating legal rights explicitly affirmed under the State’s Constitution.
One of the core foundations of our judicial system is to allow two conflicting parties to a dispute to present their case on equal footing, and then for the Court to weigh the arguments on each side. This did not happen in this case. The issues surrounding the preliminary injunction are critically connected to the District Court’s final ruling, and this Court should properly look at these actions to determine whether the District Court acted properly.”
12-02-15 Update to Federal Court Case
On Monday evening SHAKA, on behalf of the residents of Maui County concerned with the open air testing of chemicals farming and genetic engineering experiments, filed it’s initial appeal brief with the Federal 9th Circuit Court of Appeals in San Francisco, California.
The appeal seeks the correction and reversal of the decision made by District Court Judge Susan Mollway, invalidating the results of last November’s general election where a majority of the residents of the 3 populated Hawaiian islands that compose Maui County, voted for a Moratorium on industrial chemical activities until safety studies could be performed to insure there would be no harm to our communities health or environment.
The chemical industry’s involved (principally Monsanto and Dow Chemical’s “agriculture” division) acknowledge having spent millions in advertising, political lobbying and legal fees trying to defeat the measure and have to demonstrate that what they are doing in Hawaii is not harmful.
In summary of the 60 pages of legal arguments presented the brief, in it’s conclusion states:
“This case involves one of the most fundamental rights of citizens, the right to adopt laws to protect public health and the environment. These rights are rooted in both the U.S. and Hawai‘i constitutions. A majority of Maui residents exercised this right by voting in favor of this Ordinance. The largest chemical companies in the world spent millions of dollars to try and convince Maui voters that they did not need the Ordinance. County officials joined the chemical companies in publicly campaigning against the Ordinance’s adoption. All of these efforts failed. Instead, Maui voters demanded that the Ordinance be adopted to protect themselves from the chemical companies’ activities irrespective of what the chemical companies and county officials claimed.
While the difficulties in adopting an ordinance via ballot initiative should have ended there, the chemical companies, with the aid of county officials, were able to persuade a federal court to invalidate the Ordinance in seven months. In doing so, they convinced the federal district court to: (1) enforce an injunction conceived by County officials and the Chemical Companies without any of the safeguards that federal law requires; (2) deny a state court from deciding unresolved issues of state law; and (3) refuse to allow any discovery on the scope of the Ordinance’s impact in relation to federal and state law. Ultimately, the chemical companies were able to convince a federal court to disregard rights guaranteed under the Hawai‘i Constitution and instead find preemption based on various laws that do not even mention GE crops, let alone regulate against any of the harms that the Ordinance sought to protect. The District Court’s decision was wrong and leaves Maui County at risk of irreparable harms. For these reasons, this Court should reverse the decision in its entirety.“
The industry’s answering brief is due for submission by December 30th. Shaka will submit a brief in reply two weeks after that and then the case will be set for oral argument, before a 3 judge panel in San Francisco.
01-29-16 Update to Federal Court Case
The Ongoing Battle Over Land and Water Use:
Legal Maneuvering, and the Politics of Social Control
As we go about our day to day lives on the island many of us visibly associated with the SHAKA movement are often asked about “what’s happening ?”. Generally, there seems to be a sense of bewilderment about how something that “we the people” voted for in a general election more than a year ago has not been implemented by the county officials who have taken an oath to uphold the law.
This situation becomes even more confusing when you consider ARTICLE ONE of the Hawaii State Constitution, which definitively states “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.”
What has effectively allowed the industry a free pass in continuing to exploit and despoil the natural resources of our island (defined by the State Constitution as held in trust for future generations) is a series of legal and political maneuvers that they believe has placed them beyond the reaches of the law. To the extent that it is confusing, or hard to understand, it has clearly been part of their objective to make it so.
As documented elsewhere on this site, the political and legal maneuvering probably began before the election, but certainly became visible in the minutes afterwards when both industry and county officials took the position that the expressed will of the people was “legally unenforceable”. They then conspired to file a lawsuit in federal court pretending that there was a dispute between them (with one side, the industry as plaintiff, and the other side, the county officials as the defendants) when, in fact, it was nothing more than a legal maneuver to have the election results invalidated and overturned.
With the complicit support of two federal judges, they succeeded, getting one order on November 17th, 2014 from one federal judge, prohibiting the certification and implementation of the moratorium we voted for, and then continuing on June 30th with an order from the second federal judge making this prohibition final; pending appeal.
On November 30th, the decision by Federal District Court Judge Susan Mollway was appealed to the supervisory authority of the 9th Circuit Court of Appeals based in San Francisco. It is there that lower court decisions from the states of Hawaii, Washington, Oregon, Montana, Nevada, Arizona, and California are reconsidered by a select panel of judges.
The industry’s response to this was to ask the 9th Circuit Court that the appeal not even be reviewed and dismissed altogether, claiming that “we the People” (in this case the will of the majority of the Maui County residence, as represented by the SHAKA movement) had no standing or right to appeal the federal court’s order.
The basis of this seemingly outrageous claim on the industries part was a California case involving an attempt to make gay marriage illegal in that state by citizens group who were successful in passing Proposition 8 calling for a legislative determination that marriage in California be defined legally as being exclusively between a man and a woman. The Supreme Court of the United States ultimately found that the law violated the United States Constitution itself.
The significant differences between our case and the case cited (Hollingsworth v. Perry) although substantial, did not stop the industry from trying to interpret its meaning as eliminating rights affirmatively granted to us within a democracy, and even more strongly affirmed by the Hawaii State Constitution.
In the Hollingworth case, the California State Government actually passed the citizen’s initiative into law and then defended it in court against legal challenges brought by those opposed to it. It was only when a federal judge ultimately found that the state law violated the United states Constitution, that the State Government stopped defending it. Subsequently, it was determined that the originators of the initiative had no independent standing to appeal the federal court decision as their declared interests were no different than the general interests already unsuccessfully argued by the state..
In responding to the industries motion to dismiss (available here) the SHAKA movement, through our attorneys, declared “the procedural facts of this case are distinguishable from the facts before the Court in Hollingsworth. In this case, Appellants were the first to file a lawsuit in state court seeking to compel the County of Maui to enforce the Ordinance. . . Appellants also filed a motion for preliminary injunction in state court seeking this relief. Appellants had the right to raise these issues in state court under the Hawai`i Constitution, which recognizes that “each person has the right to a clean and healthy environment, and may enforce these rights against any party, public or private, through appropriate legal proceedings.” . . . This case was removed to federal court over Appellants’ objections, and the District Court denied Appellants’ requests to remand the case, and to abstain from deciding the subsequently filed federal lawsuit by the Chemical Companies. The District Court then decided the cases on summary judgment without conducting an evidentiary hearing on any disputed issues.”
Following procedures established by the court, SHAKA’s appeal will not proceed until the industry’s motion to dismiss it has been decided. The industry to this date has not even bothered to file a response to the 60 pages of compelling legal arguments filed with the court.
02-05-16 Update to Federal Court Case
The 9th Circuit Court accepts the SHAKA Movement Appeal
The Chemical Industry’s Motion to Dismiss is DENIED
The 9th Circuit Court of Appeals on Thursday issued its order DENYING the motion filed by the chemical industry (and unopposed by the Maui County Public Officials) attempting to dismiss the SHAKA movement’s appeal. (For explantation of the chemical industry’s motion see 01-29-16 Update ).
The 9th Court also GRANTED a motion submitted by the Center for Food Safety (CFS) to file an additional brief as Amicus (or Friend of The Court). This brief, supported and encouraged by SHAKA will allow our allies at CFS to provide additional legal arguments as to why the decision by Judge Mollway should be overturned and the Moratorium Ordinance certified, implemented, and enforced. A copy of the court’s order is available here.
03-05-16 Update to Federal Court Case
The Industry’s Response to The SHAKA Movement Appeal
On Friday March 4th, in response to the order of the 9th Circuit Court, the Industry filed its answer to The SHAKA Movement’s Appeal. That document is available here.
SHAKA, through it’s lawyers will be filing a brief in reply by March 14th.
In response to that same order The Center For Food Safety and Earthjustice have filed paper copies of their proposed Amicus (or Friend of The Court Brief) to be considered by the panel of 3 judges who will be hearing the appeal. That document is available here.
The date of oral arguments is currently being scheduled but will likely occur the week of June 13th, in Honolulu.
03-19-16 Update to Federal Court Case
The SHAKA Movement Files It’s Final Brief to the 9th Circuit
On Friday March 18th, The SHAKA movement through its lawyers, filed its Reply Brief, completing the filings and written arguments now before the 9th Circuit Court of Appeals.
In it’s conclusion SHAKA states –
“The District Court made grave errors in rushing to decide this case. The lower court incorrectly denied discovery on disputed facts, seized jurisdiction over SHAKA’s first-in-time state court action asserting only state claims, and continuing an injunction that was entered into by two non-adverse parties (the GE Industry/Appellees and the County of Maui) without balancing the harm to the community.
Ultimately, the District Court substituted its judgment over the decision of county voters. The District Court overrode the rights of the electorate to adopt a county ordinance by popular vote to protect against dangerous activities happening in their backyard. The District Court ignored the rights conferred under Hawai‘i ’s Constitution guaranteeing each person the rights to a “clean and healthful environment,” and affirming that “all political power of this state is inherent in the people[,] and the responsibility for the exercise thereof rests with the people.”. Haw. Const. Art. I, section 1, Art. XI, section 9.
What is clear from the record is this: Federal and State statutes and regulations that impact GE crops have a narrow focus. They address the import, export, and commerce of plant pests and noxious weeds. These laws do not protect the harms related to the destructive and dangerous process of growing GE crops. In neighborhoods on Maui near GE fields, the residents are not concerned about confining plant pests or noxious weeds. Their concerns, as expressed by the language of the Ordinance, is (1) protecting themselves from toxic chemicals that are placed into the environment, (2) preserving Maui’s natural resources and agricultural lands; (3) protecting Maui’s economy that centers on tourism and organic agriculture, and (4) preserving traditional Native Hawaiian practices and use of the land. These citizens’ votes, rights and their safety should not be ignored.”
The full, compelling, 30 page legal argument is available here.
04-4-16 Update to Federal Court Case
Maui Court Case date set
“The Ninth Circuit Court of Appeals announced that they will hear The SHAKA Movements Appeals of Judge Mollway’s decisions at 9:00 AM, on Wednesday June 15th, at the Federal Bankruptcy Court Building in Honolulu. The Court also announced that the same 3 Judge Panel that will be considering the two SHAKA appeals will also hearing the Appeals of the Kauai and Hawaii County – cases as decided by Magistrate Judge Kurren. The oral arguments presented will all be distinct and not combined.See the court schedule and announcement here.
06-15-16 Update to Federal Court Case
On Wednesday, June 15th, the Shaka Movements Appeal of the Federal District Court decisions 1st prohibiting the County from implementing the ordinance we voted for, and then finding that we supposedly did not have the authority to decide this in the first place reached the Ninth Circuit Court of Appeals. The Ninth Circuit Court hears appeals from cases that originate in the States of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington as well as other territorial courts of U.S. Jurisdiction in the Pacific. Of the Appeals Courts, one step below the United States Supreme Court, they are considered very influential.
The same three judge panel who had selected to hear the appeal also was hearing appeals from Kauai County and Hawaii County – all of which represented different strategies that were advanced by the people of Hawaii in response to community concerns related to the presence of large scale open air, experimental, industrial chemical pesticide use on the islands and development of new plants with high levels of tolerance to these poisons as food crops. Although the strategies and facts of each case are unique the same Federal Court, based in Hawaii invalidated all of the ordinances.
The cases were argued by different legal counsel, who had (in the days prior to the hearing, at the court’s encouragement) worked on developing and refining their arguments on common themes. To anyone reading all the briefs, what has happened in the islands of Kauai, Hawaii, Maui and Molokai in combination presents a very clear reflection of the harms being done to our communities by these industries and the refuge they have sought using federal authority to disregard community concerns.
The total time allowed for the appeal of these cases to be argued was well over two hours. It is unknown when the judges will reach their decision, but it is expected to be between 3 to 9 months; Although certain circuit court decisions, of significant importance, involving complex, previously undecided issues (as all these cases represent) can take up to a year for a ruling to be published.
Although the hearing of each case only allowed 15 minutes per side (for each case) the judges allowed for the arguments to extend beyond the allotted time, if there were still questions to be addressed. Also, of greater importance, are the arguments presented in the hundreds of pages of legal filings the judges will be reviewing in their analysis.
The feeling, among the many supporters from all the islands who were there, was that we were collectively well represented by our counsel. What time did not allow for, or what may not have clearly addressed in the hearing is certainly covered within our briefs; (All of which can be accessed on this website).
Rather than trying to summarize or explain hours of questioning and legal arguments, and how those relate to the hundreds of pages of evidence submitted and written arguments in our brief, we though it more productive to allow this page to be a forum for people to ask questions, that can be addressed by those working closest with our legal team.
We left the courtroom hopeful, that our voices are beginning to be heard. At issue, really are issues related to the limits of Federal Authority, balancing the alleged rights of corporations agains the rights of natural born persons, and at what point the environmental and cultural concerns that are defined in the Hawaii State Constitution are given due consideration. These issues, to the extent they are not addressed by the 9th Circuit panel, would be brought on further appeal to the Supreme Court of the United States.
On the dawn of the day of the hearings, a representative of the many thousands of people who have so far signed our “Stop the Monsanto Doctrine from Poisoning Democracy” petition publicly read selections from the more than 1,000 comments that petition supporters from around the world added to their name. Your declarations of solidarity and outrage were received by Alika Atay. A Native Hawaiian leader who is the lead plaintiff in the Maui democracy theft case. You can view the ceremony and hear these comments here: https://vimeo.com/
Please consider sharing this petition with your social network of friends and family, or commenting on and sharing our new informing to empower Huffington Post column describing the ramifications of the Monsanto Doctrine, here:
Watch the hearing video here
11-18-16 Update to Federal Court Case
9th Circuit Court of Appeals
This is a groundbreaking win for all GMO movements across the country. The court has acknowledged that states and home rule counties within states do indeed have the right to regulate and/or ban “commercial” GMO crops within home rule counties or states.
Our little Community of Maui has now created legal precedent for banning commercial GMO crops and we will now see a rise in both local and statewide GMO crop ban initiatives in the near future.
Today we stand one step closer to protecting Maui from genetic pollution and untested pesticide use. Now that states and counties across the country can legally ban farmers from growing GMO crops in their communities, eventually there will no longer be a need for GMO seed crop production and experimentation on our islands.
This ruling creates a specific distinction between experimental crops and commercial crops. States and home rule counties may regulate and/or ban “commercial” GMO crops. However, “experimental” GMO crops cannot be regulated or banned as the federal government regulates them.
Unfortunately for Maui County, Hawaii is not one of the 38 home rule states. Therefore counties in Hawaii do not have the privilege or right to protect themselves when the state is not doing so. Maui County will be forced to work on the state level to regulate commercial GMO crop activities.
Read the rest here…