The SHAKA Movement’s State court case for the implementation of the GMO moratorium, and environmental impact studies

Having carefully studied the response of the industry to local initiatives that were enacted on the island of Kauai and Hawaii County (The Big Island), SHAKA Movement began consulting with our legal advisors anticipating similar levels of resistance from the industry, should the voters determine that the proposed ordinance should be incorporated within the County as law.

When the voters on election day determined that there needed to be a moratorium on further open air genetic experimentation and unregulated chemical use, we were ready to act to ensure that the election results would be validated and implemented as State law requires of the County officials.

On November 12th, we filed a complaint in State court asking for “declaratory relief” — a judgment from the State court that the election was in full accord with State law and the result needed to be certified and implemented by the County clerk. (read the original complaint). The industry opponents, as well as County officials who had publicly campaigned against the citizen’s initiative during the election, were named as codefendants in the lawsuit.

The following day, rather than responding to the state court complaint, an action was filed by the industry (the Monsanto Company and a division of Dow Chemical – Agrogenetics) in federal court asking a Federal judge to invalidate the local Maui County election results. The details of that case, as it proceeds, can be found here.

At the time the appearance was given to federal magistrate that the industry was bringing a legal action against Maui County, whereas in truth, both “sides” were actually working together to try to overturn the result of the election. On THE SAME DAY that the lawsuit was filed, Maui County officials TOGETHER with representatives for the industry met with the judge and advised the Court “that the parties have agreed to an extension of the effective date of the Maui County Ordinance, regarding genetically engineered crops”. Agreed, together, on the day the industry lawsuit was filed that the election result would not be certified, and the legal mandate from the citizens (through an approved ballot initiative) ignored.

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”.

Four days later, the industry and county officials (again pretending to be opposing parties in a dispute) presented “the agreement” they reached, together asking the judge to issue it as an order from his court. That same day, the same federal magistrate judge (who had previously invalidated initiatives by Kauai and Hawaii counties) issued the requested order stating “Defendant County of Maui shall be and is hereby enjoined from publishing or certifying the Ordinance, enacting, effecting, implementing, executing, applying, enforcing, or otherwise acting upon the Ordinance, and the Ordinance shall not be published, certified as an Ordinance, enacted, effected, implemented, executed, applied, enforced, or otherwise acted upon”. A copy of that order may be found here.

With what the SHAKA Movement and its legal counsel, having previously anticipated becoming evident, the SHAKA Group modified its complaint to the State court and filed a motion for a preliminary injunction ordering that the election results be certified and implemented as State law requires. See a copy of the amended complaint and memorandum explaining this request of the court here.

In addition to the Hawaii State law and Maui county regulations that apply to procedures for democratic decision making (and the timely implementation of election results) the Hawaii State Constitution outlines several fundamental principles that are the basis of the SHAKA Movement’s claim – principles that cannot really be (and certainly should not ever be invalidated) be a singular federal magistrate judge; These principles include:

(1)The preamble to the Hawaii State Constitution which 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.” Under this fundamental principle the results of an election must be promptly certified and implemented.

(2) The Hawaii State Constitution (in Article 9, section 8) further recognizes 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.”

(3) In accord with the Hawaiʻi Constitution, the Federal Government has also recognized the environmental and political uniqueness of the State of Hawaii.  Public Law 103-150 a Joint Resolution of Congress adopted in 1993, recognizes that: “The health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land;” . . . . . acknowledges “the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people” and finally urges “reconciliation efforts between the United States and the Native Hawaiian people”. To invalidate the result of an election where many Native Hawaiian people voted to enact a law protecting vital environmental resources totally contradicts the express will of Congress and the President of the United States.

The State judge has set a public hearing on the SHAKA Movement’s motion for a preliminary injunction on January 12th. At that time evidence will be presented through public testimony as to the importance of the issues at stake for all of Hawaii and why the State’s judiciary authority is needed to affirm the fundamental principles of democracy, home rule (giving local communities say and control over the issues that most effect their lives) and the clear mandates of the Hawaii State Constitution. A supporting motion has been filed in Federal Court asking the newly assigned judge  to reverse the magistrate judge’s prior improper decision “enter an order setting aside the Stipulation Regarding County of Maui” and asking the federal court to abstain from further involvement with case entirely based on Hawaii State Law. (see copy of the SHAKA memorandum supporting its request for dismissal of the federal lawsuit, brought by the industry in an attempt to overturn the election result- here).


1-19-15 Update to State Court Case

January 12th Hearing Cancelled by Industry Defendant’s Legal Maneuver

Two days before the scheduled hearing in State Court the industry opponents used a legal technicality to temporarily remove the case from the State Judge’s authority and jurisdiction.  The industry lawyers accomplished this by claiming

that the SHAKA Citizens’ Initiative and Legal Action involved issues that fall under the exclusive authority of the Federal Court. Although the assertion by the industry’s lawyers was false, by asserting this claim the January 12th hearing was postponed and the case was “removed” to the Federal Court’s jurisdiction

Explaining the attempted deception on the part of the industry lawyers, SHAKA lawyers filed a motion asking the Federal judge to order the case back to the State Court where it needs to be adjudicated. A hearing on this motion will be held on February 17th. A copy of the Motion and legal arguments presented by SHAKA’s lawyers is available here

2-18-15 Update to State Court Case

A hearing that was originally scheduled before the Federal Magistrate Judge Kurren on February 18 was cancelled by the Magistrate. It was determined, based on the briefings he received from both SHAKA and the industry, that a court hearing including oral arguments was not necessary.

The scheduled hearing on 2-18 was to be held in consideration of a motion that SHAKA had filed asking the Federal Court to return the case to the State Court’s jurisdiction we had filed back in November – that the Industry had improperly “removed”  and placed in the Federal Court’s authority. 

 In the relevant section we explain – “This case involves a dispute over the validity of a local ordinance (the “Ordinance”) which seeks to place a temporary moratorium on the growth, testing, and cultivation of genetically engineered organisms (“GMOs”) within the County of Maui.  On November 12, 2014, Plaintiffs, the original drafters and proponents of the Ordinance, initiated a lawsuit in State Court, seeking a declaratory ruling that the Ordinance is not preempted by state law and that the County should properly implement the law.  One day later, in an attempt to forum shop, pro-GMO agribusinesses and companies (collectively, “Monsanto Defendants”) initiated a Federal Court action against the County of Maui (“County”), seeking to enjoin certification of the election results and implementation of the Ordinance.”

“In the Federal Court action, Monsanto Defendants and the County entered into a stipulation, agreeing to enjoin the certification and enactment of the Ordinance until March 31, 2015.  As a result, the Ordinance has not been certified, and the necessary protections to Maui’s environment, public health, and natural resources have been compromised.”

“Despite Plaintiffs’ having properly filed their action in State Court, Monsanto Defendants, in collaboration with the County, now attempt to remove this case to Federal Court in the hopes of obtaining a more favorable outcome.  This Court should abstain from adjudicating this action involving important state issues and remand the case to State Court”.

3-2-15 Update to State Court Case

On Monday, March 2 Magistrate Judge Barry Kurren published his findings and recommendation to the Chief District Court Judge Susan Mollway to deny our motion to have our State case remanded (returned) to the State court. Once again (as it was in the cases involving Kauai and Hawaii Counties, both of which are on Appeal to the 9th Circuit Court of Appeals) Magistrate Judge Kurren’s reasoning in siding with the industry is legally flawed.

A motion designed to correct this and asking for a proper ruling from Judge Mollway will be filed before the March 10th hearing in the Federal case; The case where the industry litigants have sued Maui County to not have the results of the November general election (calling for Moratorium on further open air genetic experimentation) certified or implemented. click here for more information.

3-7-15 Update To State Court Case

On Friday March 7th SHAKA’€™s lawyers filed a memorandum pointing out the errors in Magistrate Judge Kurren’s recommendation to Judge Mollway to NOT remand SHAKA’€™s State Court Complaint (which was filed right after the election in November) back to the Hawaii State Court. 

     At issue is a tactic the industry defendants in the State Court action have used to have the case unilaterally “€œremoved” to the federal court’s jurisdiction, based on assertions that were entirely false. The memorandum objecting to Magistrate Judge Kurren’€™s recommendation is available here.

4-15-15 Update to State Court Case 

On April 15th Judge Mollway  accepted Judge Kurren’s  flawed recommendations and issued a judgement denying SHAKA’s motion to have the case that was filed in Hawaii State Court (that had been “removed” by the industry’s lawyers) returned to the  State’s Jurisdiction. The full opinion and order is available here. The order does not even attempt to address the objections SHAKA’s lawyers made in response to Magistrate Judge Kurren’s recommendation. That document is available here.

5-1-15 Update to State Court Case 

SHAKA’s lawyers are currently evaluating whether this decision, denying our motion to remand, constitutes a continuing abuse of discretion authority on the Federal Judge’s part, providing further basis for relief on appeal.

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