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PAUL H. ACHITOFF (#5279) EARTHJUSTICE 850 Richards Street, Suite 400 Honolulu, Hawai‘i 96813 Telephone No.: (808) 599-2436 Fax No.: (808) 521-6841 Email: [email protected] GEORGE A. KIMBRELL (Pro Hac Vice pending) DONNA F. SOLEN (Pro Hac Vice pending) SYLVIA SHIH-YAU WU (Pro Hac Vice pending) CENTER FOR FOOD SAFETY 303 Sacramento St., 2nd Floor San Francisco, CA 94111 T: (415) 826-2770 / F: (415) 826-0507 Emails: [email protected]

[email protected] [email protected]

Counsel for Proposed Intervenor-Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I

HAWAI‘I FLORICULTURE AND NURSERY ASSOCIATION, et al.,

Plaintiffs,

v. COUNTY OF HAWAI‘I,

Defendant,

and CENTER FOR FOOD SAFETY, NANCY REDFEATHER, MARILYN HOWE, and RACHEL LADERMAN,

Proposed Intervenor-Defendants.

)) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 1:14-cv-00267-BMK NOTICE OF MOTION AND MOTION OF CENTER FOR FOOD SAFETY, NANCY REDFEATHER, MARILYN HOWE, AND RACHEL LADERMAN FOR LEAVE TO INTERVENE ON BEHALF OF DEFENDANT; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF ANDREW KIMBRELL; DECLARATION OF NANCY REDFEATHER; DECLARATION OF MARILYN HOWE; DECLARATION OF RACHEL LADERMAN; DECLARATION OF STEVE SAKALA; PROPOSED ANSWER; CERTIFICATE OF SERVICE

Case 1:14-cv-00267-BMK-NONE Document 34 Filed 08/01/14 Page 1 of 3 PageID #: 283

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Notice is hereby given that Center for Food Safety (CFS), Nancy

Redfeather, Marilyn Howe, and Rachel Laderman (collectively Proposed

Intervenors) hereby respectfully move to intervene as of right on behalf of

Defendant in the above-titled action pursuant to Rule 24(a)(2) of the Federal Rules

of Civil Procedure. See Fed. R. Civ. P. 24. Alternatively, Proposed Intervenors

seek permissive intervention under Rule 24(b)(2) to protect their members’ vital

interests in, and support of, Hawai‘i County Ordinance 13-121 (formerly Bill 113)

(hereafter Ordinance 13-121), a county law that provides the County’s residents

and environment greater protection from the risk of transgenic contamination and

from potential pesticide drift and contamination associated with genetically

engineered crops. See id.

Proposed Intervenors and their members vigorously supported Ordinance

13-121, and actively participated in the legislative process to ensure its passage.

As Hawai‘i citizens who own property and farm land near some of Plaintiffs’

farms that grow engineered crops, Proposed Intervenors’ members have unique

personal interests in the protection guaranteed by Ordinance 13-121. As an

organization dedicated to protecting public health and the environment from the

harmful impacts of genetically engineered crops and their associated pesticide use,


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Proposed Intervenors have a substantive interest in ensuring Ordinance 13-121’s

implementation.

This Motion is based upon this Notice of Motion and Motion for Leave to

Intervene, the Memorandum in Support thereof, the Declarations of Andrew

Kimbrell, Nancy Redfeather, Marilyn Howe, Rachel Laderman, Steve Sakala, the

Proposed Order, the Proposed Answer pursuant to Rule 24(c), and all pleadings

and papers filed in this action, and upon such other matters the Court may

entertain. See Fed. R. Civ. P. 24(c).

DATED: Honolulu, Hawaiʻi, August 1, 2014.

Respectfully submitted,

/s/ Paul H. Achitoff PAUL H. ACHITOFF ((#5279) EARTHJUSTICE 850 Richards Street, Suite 400 Honolulu, Hawai‘i 96813 Telephone No.: (808) 599-2436 Fax No.: (808) 521-6841 Email: [email protected] GEORGE A. KIMBRELL (Pro Hac Vice pending) DONNA F. SOLEN (Pro Hac Vice pending) SYLVIA SHIH-YAU WU (Pro Hac Vice pending) Center for Food Safety 303 Sacramento St., 2nd Floor San Francisco, CA 94111 T: (415) 826-2770 / F: (415) 826-0507

Emails: [email protected] [email protected] [email protected]








Plaintiffs,


Defendant,



)) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 1:14-cv-00267-BMK MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO INTERVENE BY CENTER FOR FOOD SAFETY, NANCY REDFEATHER, MARILYN HOWE, AND RACHEL LADERMAN

Case 1:14-cv-00267-BMK-NONE Document 34-1 Filed 08/01/14 Page 1 of 34 PageID #: 286

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………..i

TABLE OF AUTHORITIES……………………………………………………….ii

I. INTRODUCTION ........................................................................................... 1

II. ARGUMENT ................................................................................................... 6

A. Proposed Intervenors Are Entitled to Intervene As of Right ................ 6

Proposed Intervenors’ Motion Is Timely. ................................... 7 1.

Proposed Intervenors Have Significantly Protectable 2.Interests. ...................................................................................... 9

The Outcome of this Case May Impair Proposed 3.Intervenors’ Interests. ............................................................... 14

The Defendant County May Not Adequately Represent 4.Proposed Intervenors’ Interests. ............................................... 16

B. At a Minimum, the Court Should Grant Permissive Intervention ...... 21

III. CONCLUSION .............................................................................................. 27


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TABLE OF AUTHORITIES

PAGE(S)

FEDERAL CASES

Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349 (9th Cir. 2013) ................................................................ 22, 24, 25

California Dump Truck Owners Association v. Nichols, 275 F.R.D. 303 (E.D. Ca. 2011) ......................................................................... 13

Californians for Safe & Competitive Dump Truck Transportation. v. Mendonca, 152 F.3d 1184 (9th Cir. 1998) ............................................................................ 17

Citizens for Balanced Use v. Montana Wilderness Association, 647 F.3d 893 (9th Cir. 2011) ............................................................................ 8, 9

Center for Food Safety v. Johanns, 451 F. Supp. 2d 1165 (D. Haw. 2006) .................................................................. 3

Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9th Cir. 1995) .............................................................................. 17

Freedom from Religion Foundation, Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011) .............................................................................. 23

Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) .......................................................................... 8, 11

International Center Technology Assessment v. Johanns, 473 F. Supp. 2d 9 (D.D.C. 2007) .......................................................................... 2

Jackson v. Abercrombie, 282 F.R.D. 507 (D. Haw. 2012) ....................................................... 11, 12, 15, 16

Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) ................................................................ 22, 23, 26

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .......................................................................................... 1, 2


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PAGE(S)

FEDERAL CASES, CONT’D

Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) ........................................................................ 8, 9, 12

Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) ................................................................................ 7

Sagebrush Rebellion v. Watt, 713 F.2d 525 (9th Cir. 1983) ........................................................................ 12, 16

Sierra Club v. Glickman, 82 F.3d 106 (5th Cir. 1996) ................................................................................ 20

Southwest Center for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) .................................................................. 10, 14, 16

United Food & Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544 (1996) ............................................................................................ 13

United States v. Alisal Water Corp., 370 F.3d 915 (9th Cir. 2004) .............................................................................. 21

United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) .............................................................. 7, 15, 22, 23

Wilderness Society v. United States Forest Service, 630 F.3d 1173 (9th Cir. 2011) (en banc) .....................................................passim

UNPUBLISHED FEDERAL CASES

Center for Biological Diversity v. Kelly, No. 1:13-CV-00427-EJL-CWD, 2014 WL 3445733 (D. Idaho July 11, 2014) ....................................................................................................... 24, 25

Geertson Seed Farms v. Johanns, No. C 06-01075 CRB, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007) ............... 1, 2


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PAGE(S)

UNPUBLISHED FEDERAL CASES, CONT’D

Golden Gate Restaurant Association v. City & County of San Francisco, No. C 06-06997 JSW, 2007 WL 1052820 (N.D. Cal. Apr. 5, 2007) ................. 19

National Association of Home Builders v. San Joaquin Valley Unified Air Pollution District, No. 1:07-cv-0820 LJO DLB, 2007 WL 2757995 (E.D. Cal. Sept. 21, 2007) ................................................................................................. 17, 18, 19

Northwest Environmental Advocates v. United States Environmental Protection Agency, No. 3:12-cv-01751-AC, 2014 WL 1094981 (D. Or. Mar. 19, 2014) ................. 21

Pickup v. Brown, No. 2:12-CV-02497-KJM, 2012 WL 6024387 (E.D. Cal. Dec. 4, 2012) ................................................................................................................... 11

Schmidt v. Coldwell Banker Residential Brokerage, No. 5:13-cv-00986 EJD, 2013 WL 2085161 (N.D. Cal. May 14, 2013) ................................................................................................................... 24

Syngenta Seeds, Inc. v. County of Kaua‘i, Civ. No. 14-00014, 2014 WL 1631830 (D. Haw. Apr. 23, 2014)...............passim

Tuscon Women’s Center v. Arizona Medical Board, Civ. No. 09-1909, 2009 WL 4438933 (D. Ariz. Nov. 24, 2009) ....................... 11

Utica Mutual Insurance Co. v. Hamilton Supply Co., No. C 06-07846 SI, 2007 WL 3256485 (N.D. Cal. Nov. 5, 2007) .................... 24

STATUTES

Ordinance 13-121 ..............................................................................................passim

Ordinance 13-121, § 1(3) ......................................................................................... 18

Ordinance 13-121, § 3 ................................................................................................ 1


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PAGE(S)

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 24 ................................................................................................. 5, 26

Rule 24(a) of the Federal Rules of Civil Procedure..........................................passim

Rule 24(b) of the Federal Rules of Civil Procedure .........................................passim

Fed. R. Civ. P. 24(b)(1)(B) ...................................................................................... 25

Fed. R. Civ. P. 24(b)(3) ............................................................................................ 22

INTERNET CITATIONS

Andrew Pollack, Unease in Hawaii’s Cornfields, N.Y. Times (Oct. 7, 2013), http://www.nytimes.com/2013/10/08/business/fight-over-genetically-altered-crops-flares-in-hawaii.html?_r=0 .......................................... 5

Charles Benbrook, Impacts of Genetically Engineered Crops on Pesticide Use in the U.S.–The First Sixteen Years, 24:24 Envtl. Sci. Europe, 2012, available at http://www.enveurope.com/content/pdf/2190-4715-24-24.pdf ............................ 4

Doug Gurian-Sherman, Ph.D., Center for Food Safety, Contaminating the Wild (2006), available at http://www.centerforfoodsafety.org/reports/1396/contaminating-the-wild ................................................................................................................. 2

Information Systems for Biotechnology, http://www.isb.vt.edu/locations-by-years.aspx (last visited July 31, 2014) (select “1987” through “2014” and “Locations”; then follow “Retrieve Charts”) ................................................................................................. 5

Mitch Lies, Bentgrass Eradication Plan Unveiled, Capital Press (June 16, 2011), http://www.capitalpress.com/content/ml-scotts-061711#.U9lHsfldVZo ......................................................................................... 3

Mitch Lies, Feds Mum on GMO Spread, Capital Press (Nov. 18, 2010), http://www.capitalpress.com/content/ml-bentgrass-111910#.U9lGp_ldVZo ........................................................................................ 3


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OTHER AUTHORITIES

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1917 (3d ed. 2010) ...................................................... 24


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I. INTRODUCTION

Ordinance 13-121 provides farmers and residents of Hawai‘i, their property,

and the environment important protection from the impacts of genetically

engineered crops, such as transgenic contamination and associated pesticide drift.

It “preserves Hawai‘i Island’s unique and vulnerable ecosystem while promoting

the cultural heritage of indigenous agricultural practices.” Ordinance 13-121, § 3.

Ordinance 13-121 is vital because Hawai‘i is the epicenter of genetically

engineered (GE) organism experimentation, development, and production, and thus

also the epicenter of their impacts. One major impact that Ordinance 13-121

addresses is GE, or transgenic, contamination: the unintended, undesired presence

of transgenic material in organic or conventional (non-GE) crops, as well as wild

plants. This happens through wind or insect pollen drift, seed mixing, faulty or

negligent containment, weather events, and other means. See, e.g., Geertson Seed

Farms v. Johanns, No. C 06-01075 CRB, 2007 WL 518624, at *4 (N.D. Cal. Feb.

13, 2007) (“Biological contamination can occur through pollination of

non-genetically engineered plants by genetically engineered plants or by the

mixing of genetically engineered seed with natural, or non-genetically engineered

seed.”). Harm from transgenic contamination manifests itself in several ways; the

“injury has an environmental as well as an economic component.” Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 155 (2010). The agronomic injury can


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cause significant and widespread economic damage; past transgenic contamination

episodes have cost U.S. farmers literally billions of dollars. In addition, the harm

is irreparable, because once the contamination occurs, it becomes difficult, if not

impossible, to contain it. Unlike standard chemical pollution, transgenic

contamination is a living pollution that can propagate itself over space and time via

gene flow. Geertson Seed Farms, 2007 WL 518624, at *5 (“Once the gene

transmission occurs and a farmer’s seed crop is contaminated with the Roundup

Ready gene, there is no way for the farmer to remove the gene from the crop or

control its further spread.”). Just the risk of contamination itself creates costly

burdens, such as the need for contamination testing or buffer zones, on organic and

conventional farmers and businesses. Monsanto, 561 U.S. at 154-55.

In addition to economic harms, the escape of transgenes into wild or feral

plant populations is in most cases irreparable.1 The State of Oregon, for example,

continues the Sisyphean task of trying to find and destroy feral populations of

Monsanto’s “Roundup Ready” genetically engineered bentgrass that escaped field

trials in Oregon over a decade ago. See Int’l Ctr. Tech. Assessment v. Johanns,

473 F. Supp. 2d 9, 29-31 (D.D.C. 2007) (discussing contamination of a National

1See, e.g., Doug Gurian-Sherman, Ph.D., Ctr. for Food Safety, Contaminating the Wild (2006), available at http://www.centerforfoodsafety.org/reports/1396/contaminating-the-wild.


3

Grassland, holding field trials’ oversight violated the National Environmental

Policy Act).2

Here in Hawai‘i, the risks of contamination are perhaps even greater than

elsewhere, for several reasons. In Hawai‘i, different land uses often take place in

close proximity, which means different forms of agricultural production and

natural areas are found near one another. Thus, a larger GE producer may be

located near small organic growers or natural areas, or both. As is well known,

despite its relatively small area Hawai‘i has more endangered species than any

other state, with dozens of unique and rare plants and animals found throughout

each island. See, e.g., Ctr. for Food Safety v. Johanns, 451 F. Supp. 2d 1165, 1181

(D. Haw. 2006) (noting that Hawai‘i has more protected species than any other

state in the context of holding that GE organism field trials violated the

Endangered Species Act). Transgenes that escape a field trial or commercial

production site therefore can easily contaminate a nearby grower’s fields or natural

areas. Hawai‘i’s all-year growing season and lack of cold winter support the

survival and dispersal of any GE plants that do escape. There has already been

widespread contamination of feral papaya, along with non-GE cultivated papaya,

2 Mitch Lies, Feds Mum on GMO Spread, Capital Press (Nov. 18, 2010), http://www.capitalpress.com/content/ml-bentgrass-111910#.U9lGp_ldVZo; Mitch Lies, Bentgrass Eradication Plan Unveiled, Capital Press (June 16, 2011) http://www.capitalpress.com/content/ml-scotts-061711#.U9lHsfldVZo.


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so that any grower who wants to produce non-GE papaya must isolate himself

from areas of GE production, test his crop regularly to ensure it has not been

contaminated, and take measures to reduce the likelihood of contamination, such as

bagging flowers to prevent cross-pollination, which increase his cost of production.

GE growers face no such costs; purchasers of organic or conventional produce will

reject GE produce, while a GE grower need have no similar concerns.

In addition to concerns of transgenic contamination, genetically engineered

crops come with associated problems of pesticide drift. Chemical companies

genetically engineer crops to withstand the direct application of their pesticide

products, and the vast majority of all GE crops are engineered to be resistant to

pesticides. The cultivation of these genetically engineered, pesticide-resistant

crops marks a significant change from conventional or organic farming by

massively increasing the amount, timing, and frequency of pesticide applications.3

The tremendous increase in pesticide use associated with the cultivation of

genetically engineered crops in the past few decades has also altered agricultural

production in Hawai‘i, where the year-round warm climate allows for continuous

production of genetically engineered seeds, and experimental testing of new

genetically engineered crops, both destined for commercial production on the

3 Charles Benbrook, Impacts of Genetically Engineered Crops on Pesticide Use in the U.S.–The First Sixteen Years, 24:24 Envtl. Sci. Europe, 2012, available at http://www.enveurope.com/content/pdf/2190-4715-24-24.pdf.


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mainland rather than local consumption.4 The state has hosted more open-air,

experimental field trials of genetically engineered crops than any other state in the

nation.5 The toxic pesticides routinely used on GE crops may drift easily on the

wind, and the warm climate that makes the islands convenient for genetically

engineered seed production and crop testing increases the chance of exposure to

pesticides through vapor drift.

Proposed Intervenors possess significant interests in the implementation of

Ordinance 13-121, the provisions of which ensuring the prevention of the transfer

and uncontrolled spread of genetically engineered pollen and transgenic material to

private property, public lands, and waterways are critical to protecting the health

and property of Proposed Intervenors and their members, and go to the core of

Proposed Intervenor Center for Food Safety’s organizational interests.

Accordingly, the Court should grant Proposed Intervenors’ timely Motion

for Leave to Intervene under Rule 24 of the Federal Rules of Civil Procedure. See

Fed. R. Civ. P. 24.

4 Andrew Pollack, Unease in Hawaii’s Cornfields, N.Y. Times (Oct. 7, 2013), http://www.nytimes.com/2013/10/08/business/fight-over-genetically-altered-crops-flares-in-hawaii.html?_r=0.

5 Info. Sys. Biotechnology, http://www.isb.vt.edu/locations-by-years.aspx (last visited August 1, 2014) (select “1987” through “2014” and “Locations”; then follow “Retrieve Charts”).


6

II. ARGUMENT

Proposed Intervenors are entitled to intervene in this case, since they meet

the requirements for intervention as of right under Rule 24(a) of the Federal Rules

of Civil Procedure. They have significant protectable interests related to

Ordinance 13-121 that may be impaired by the case’s outcome, and their interests

may not be adequately represented by the County. Alternatively, Proposed

Intervenors also meet the requirements for permissive intervention under Rule

24(b). The Court should grant Proposed Intervenors’ Motion for Leave to

Intervene.

A. Proposed Intervenors Are Entitled to Intervene As of Right.

Rule 24(a) provides:

On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a). The Ninth Circuit “construe[s] the Rule broadly in favor of

proposed intervenors” in an analysis that is guided by “practical and equitable

considerations.” Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th

Cir. 2011) (en banc) (internal quotations omitted). According to the Ninth Circuit,

its “liberal policy in favor of intervention serves both efficient resolution of issues

and broadened access to the courts.” Id.; see also Syngenta Seeds, Inc. v. Cnty. of


7

Kaua‘i (Syngenta), Civ. No. 14-00014, 2014 WL 1631830, at *3 (D. Haw. Apr. 23,

2014).

The Ninth Circuit utilizes a four-part test to determine whether intervention

as a matter of right is warranted:

(1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action.

Wilderness Soc’y, 630 F.3d at 1177 (internal quotations omitted); Prete v.

Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (internal quotations omitted). “[T]he

requirements are broadly interpreted in favor of intervention.” Prete, 438 F.3d at

954. As the Ninth Circuit instructs, “allowing parties with a practical interest in

the outcome of [the case] to intervene” reduces and eliminates “future litigation

involving related issues,” and enables “an additional interested party to express its

views before the court.” United States v. City of L.A., 288 F.3d 391, 398 (9th Cir.

2002). Proposed Intervenors satisfy each of the four requirements for intervention

as of right under Rule 24(a).

Proposed Intervenors’ Motion Is Timely. 1.

The Ninth Circuit evaluates the timeliness of a motion to intervene under

three criteria: (1) the stage of the proceeding; (2) potential prejudice to other


8

parties; and (3) the reason for any delay in moving to intervene. See, e.g., Nw.

Forest Res. Council v. Glickman, 82 F.3d 825, 836-37 (9th Cir. 1996). Proposed

Intervenors’ Motion satisfies all criteria for timely intervention. This case is still in

its initial stage: Plaintiffs filed their Complaint less than two months ago, on June

9, 2014, see Compl., Dkt. No. 1; Defendant Hawai‘i County answered on July 1,

2014. Dkt. No. 19. Plaintiffs then filed a motion for summary judgment, two

weeks ago.6 A Rule 16 scheduling conference is set for October 23, 2014.

Proposed Intervenors are submitting a Proposed Answer concurrently with

their Motion, to further eliminate any potential delay or prejudice to existing

parties. Proposed Intervenors also agree that, should the Court permit them to

intervene, they will comply with the current summary judgment briefing schedule,

if the Court concludes that the current schedule is appropriate. Thus, no prejudice,

delay, or inefficiency will result from allowing Proposed Intervenors to intervene

at this time. See, e.g., Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647

F.3d 893, 897 (9th Cir. 2011) (motion filed “less than three months after the

complaint was filed and less than two weeks after the Forest Service filed its

answer to the complaint” was timely); Idaho Farm Bureau Fed’n v. Babbitt, 58

F.3d 1392, 1397 (9th Cir. 1995) (motion filed “four months after [plaintiff

initiated] action” and “before any hearings or rulings on substantive matters” was

6 Pls.’ Mot. Summ. J., Dkt. No. 28 (filed July 16, 2014).


9

timely).

Finally, courts should consider the reason for any delay. Nw. Forest Res.

Council, 82 F.3d at 836-37. Considering that Proposed Intervenors filed this

Motion less than two months after this suit was commenced, there has been no

meaningful delay. Moreover, as the Court is aware, up until a few days ago, the

same nonprofit counsel for Proposed Intervenors (Center for Food Safety and

Earthjustice) were preparing their summary judgment reply briefs, and then

preparing for oral argument in Syngenta, and filed this Motion as quickly as

possible.

Proposed Intervenors Have Significantly Protectable Interests. 2.

According to the Ninth Circuit, the requirement that a party seeking

intervention as of right have an “interest” in the subject of the lawsuit is

“‘primarily a practical guide to disposing of lawsuits by involving as many

apparently concerned persons as is compatible with efficiency and due process’”

Wilderness Soc’y, 630 F.3d at 1179 (quoting Cnty. of Fresno v. Andrus, 622 F.2d

436, 438 (9th Cir. 1980)). A court’s assessment of an applicant’s interest in the

case is a “‘practical, threshold inquiry.’” Nw. Forest Res. Council, 82 F.3d at 837

(9th Cir. 1996) (quoting Greene v. United States, 996 F.2d 973, 976; Citizens for

Balanced Use, 647 F.3d 897 (9th Cir. 2011) (same). A party has a sufficient

interest for intervention as of right if “‘it will suffer a practical impairment of its


10

interests as a result of the pending litigation.’” Wilderness Soc’y, 630 F.3d at 1180

(quoting California ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir.

2006)). No specific legal or equitable interest is required; an interest is

“significantly protectable” so long as it is “‘protectable under some law’” and

“‘there is a relationship between the legally protected interest and the [plaintiffs’]

claims.’” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir.

2001) (quoting Sierra Club v. U. S. Envtl. Prot. Agency, 995 F.2d 1478, 1484 (9th

Cir. 1993)).

Proposed Intervenors have significantly protectable interests in this matter.

For nearly two decades, Proposed Intervenor Center for Food Safety (CFS), a

sustainable agriculture nonprofit, has worked to improve the oversight of

genetically engineered organisms at the federal, state, and local level. Kimbrell

Decl. ¶¶ 3-9. CFS’s fundamental mission is ameliorating the adverse impacts of

industrial farming and food production systems—such as genetically engineered

crop production and pesticide use—on health and the environment. CFS has a

substantial program on genetically engineered organisms. Id. As part of this

program, CFS has assisted numerous states and counties in drafting and passing

legislation related to protecting the environment and farmers from the impacts of

industrial agriculture, including assisting numerous counties in passing ordinances

like Ordinance 13-121, which restrict the growing of genetically engineered crops


11

and create GE free-zones. Id. ¶¶ 9-12. Because none of these ordinances has ever

been challenged by biotech and chemical interests, this case will be critical to

CFS’s ability to continue its programmatic mission.

CFS and its members were active supporters in Ordinance 13-121’s passage,

testifying in support and providing feedback and input to the County. Kimbrell

Decl. ¶ 12; Sakala Decl. 10; Redfeather Decl. 14. See Jackson v. Abercrombie,

282 F.R.D. 507, 516-17 (D. Haw. 2012) (finding nonprofit organization that spent

time and money providing information in a campaign to educate voters had a

significantly protectable interest to meet that requirement for intervention as of

right); Tucson Women’s Ctr. v. Ariz. Medical Bd., Civ. No. 09-1909, 2009 WL

4438933, at *4 (D. Ariz. Nov. 24, 2009) (holding public interest group that

provided testimony in support of the challenged law had a demonstrated significant

interest warranting intervention as of right); Pickup v. Brown, No. 2:12-CV-02497-

KJM, 2012 WL 6024387, at *1 (E.D. Cal. Dec. 4, 2012) (finding public interest

group that sponsored and lobbied for the challenged bill prior to its passage has a

significantly protectable interest in the case).

The Ninth Circuit has held that “[a] public interest group is entitled as a

matter of right to intervene in an action challenging the legality of a measure it has

supported.” Idaho Farm Bureau Fed’n, 58 F.3d at 1397-98 (upholding

intervention as of right and finding that a conservation group that had participated


12

in the administrative process prior to the decision to list an endangered species had

significant interest in suit seeking to remove the listing); see also Nw. Forest Res.

Council, 82 F.3d at 837-38 (public interest groups permitted to intervene as of right

when groups “were directly involved in the enactment of the law or in the

administrative proceedings out of which the litigation arose”); Sagebrush Rebellion

v. Watt, 713 F.2d 525, 527-28 (9th Cir. 1983) (holding that national wildlife

organization had a significant interest in suit challenging the Department of

Interior’s decision to develop a bird conservation area where the organization had

participated in the administrative process prior to the development); Jackson, 282

F.R.D. at 514-15 (holding that nonprofit organization that actively supported the

ratification of a constitutional amendment reserving the right of marriage to

opposite-sex couples had demonstrated a significantly protectable interest

warranting intervention as of right).

CFS also seeks to intervene on behalf of its many members that reside in

Hawai‘i County who are personally and directly protected by the ordinance.

Kimbrell Decl. ¶¶ 19-20; see generally Sakala Decl.; Redfeather Decl. They are

farmers and businesspeople that practice organic agriculture and that care deeply

about the purity of seed and protecting it from transgenic contamination and

pesticide drift. They farm or otherwise work in the food industry, and their

reputations with their customers and their economic well-being depends on their


13

ability to keep their products free of transgenic contamination. They also care

about protecting the native ecosystems of Hawai‘i Island from transgenic

contamination. See Sakala Decl.; Redfeather Decl.; see also United Food &

Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544, 552 (1996)

(organization’s interests in litigation shown by alleged harms to its members).

In Syngenta, this Court held that where “proposed intervenors assert an

interest in environmental actions affecting their members, courts have generally

found a significantly protectable interest to exist for purposes of intervention as of

right.” Syngenta, 2014 WL 1631830, at *4 (citing Am. Farm Bureau Fed’n v. U.S.

EPA, 278 F.R.D. 98, 106 (M.D. Pa. 2011) (holding environmental group whose

members used the Chesapeake Bay for aesthetic and recreational purposes had a

significantly protectable interest in litigation challenging EPA Clean Water Act

restrictions); Cal. Dump Truck Owners Ass’n v. Nichols, 275 F.R.D. 303, 306-07

(E.D. Ca. 2011) (holding that members of an environmental group who benefited

from improved air quality under regulations restricting emissions had sufficient

interest in litigation attacking those regulations for purposes of intervention). In

Syngenta, this Court concluded that CFS—one of the Proposed Intervenors here—

was entitled to intervene as of right. Syngenta, 2014 WL 1631830, at *1. Since

intervenors’ members in that case live and work in close proximity to the

agricultural operations that grow genetically engineered crops and use associated


14

pesticides, this Court held that they had a “‘significantly protectable interest’ in

limiting their exposure to allegedly toxic chemicals.” Id. at *4. The facts in this

case are essentially the same, and should result in the same conclusion that CFS is

entitled to intervene to protect its interests and those of its members.

Proposed Intervenors also include farmers and farm businesspeople who

grow organic or natural, non-genetically engineered crops in Hawai‘i County.

Howe Decl. ¶¶ 2-5; Redfeather Decl. ¶¶ 4-5; Laderman Decl. ¶¶ 2-5. For

example, Proposed Intervenor Rachel Laderman grows nearly a dozen crops using

organic methods and sells to several markets. Laderman Decl. ¶¶ 2-5. Proposed

Intervenor Marilyn Howe similarly farms nearly a dozen crops using organic

methods, has a local roadside stand, and sells her produce to a local store. Howe

Decl. ¶¶ 2-5. Proposed Intervenors’ farms and businesses are at risk from

contamination. See id. ¶¶ 6-9, 12-16. Proposed Intervenors also have significant

personal health and environmental interests in the enactment of Ordinance 13-121.

Howe Decl.14; Redfeather Decl. ¶¶ 8, 13, 15, 19-23; Laderman Decl. ¶¶ 7, 11-12,

15.

The Outcome of this Case May Impair Proposed Intervenors’ 3.Interests.

Where the rights of an applicant for intervention may be substantially

affected by the disposition of the matter, “he should, as a general rule, be entitled

to intervene.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d at 822 (quoting


15

Fed. R. Civ. P. Rule 24 Advisory Committee Notes). Courts should focus on the

“future effect pending litigation will have” on the intervenors’ interests. Syngenta,

2014 WL 1631830, at *5 (quoting Parker v. Nelson, 160 F.R.D. 118, 122 (D. Neb.

1994)). The relevant question is whether the disposition of the matter “‘may’

impair rights ‘as a practical matter’ rather than whether the decree will

‘necessarily’ impair them.” City of L.A., 288 F.3d at 401.

The inquiry into whether an interest is impaired is necessarily tied to the

existence of an interest. See Syngenta, 2014 WL 1631830, at *5. Indeed, “after

determining that the applicant has a protectable interest, courts have ‘little

difficulty concluding’ that the disposition of the case may affect such interest.”

Jackson, 282 F.R.D. at 517 (quoting Lockyer, 450 F.3d at 442); Syngenta, 2014

WL 1631830 at *5 (because this Court found that the intervenors have a

significantly protectable interest in the protections afforded by the ordinance

relating to pesticides and genetically modified organisms, “it naturally follows that

the invalidation of [the ordinance] would impair those interests”).

Plaintiffs seek declaratory relief that Ordinance 13-121 is illegal and invalid,

and an injunction enjoining the County from enforcing it. The Court’s resolution

of this case will thus directly affect Proposed Intervenors’ ability to protect

themselves and their health and property, as well as their interests in protecting

Hawai‘i’s public health and environment from the detrimental impacts of


16

genetically engineered crop cultivation. See generally Howe Decl., Laderman

Decl., Redfeather Decl. As a precedent, the decision could impair Proposed

Intervenor CFS’s mission elsewhere to enact similar laws, on behalf of its

members in those places, or for the first time threaten the viability of similar

county ordinances that have already been enacted. Kimbrell Decl. ¶ 22.

Accordingly, the Court should grant intervention as of right. See Jackson, 282

F.R.D. at 517 (finding that an adverse decision in the case would impair public

interest group’s interest in preserving the challenged constitutional amendment).

The Defendant County May Not Adequately Represent 4.Proposed Intervenors’ Interests.

The burden of showing inadequate representation is minimal, and the

applicant need only show that representation of its interests by existing parties

“‘may be’ inadequate.” Sw. Ctr. for Biological Diversity, 268 F.3d at 823 (quoting

Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)); Sagebrush

Rebellion, 713 F.2d at 528 (“[T]he burden of making this showing is minimal.”).

Although a general presumption exists that “a state adequately represents its

citizens” when the applicant for intervention shares the same interest, the

presumption is rebuttable. In the Ninth Circuit, for example, the presumption can

be overcome where the applicant for intervention demonstrates “more narrow,

parochial interests” than existing parties. Syngenta, 2014 WL 1631830, at *6

(quoting Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499


17

(9th Cir. 1995), abrogated on other grounds, Wilderness Soc’y, 630 F.3d at 1178));

Nat’l Ass’n of Home Builders v. San Joaquin Valley Unified Air Pollution Dist.,

No. 1:07-cv-0820 LJO DLB, 2007 WL 2757995, at *4 (E.D. Cal. Sept. 21, 2007)

(quoting Lockyer, 450 F.3d at 444-45; Californians for Safe & Competitive Dump

Truck Transp. v. Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998) (“[B]ecause the

employment interests of [intervenor]’s members were potentially more narrow and

parochial than the interests of the public at large, [intervenor] demonstrated that the

representation of its interests by the [defendant state agencies] may have been

inadequate.”). The Ninth Circuit has held that “[i]nadequate representation is most

likely to be found when the applicant asserts a personal interest that does not

belong to the general public.” Forest Conservation Council, 66 F.3d at 1499.

Proposed Intervenors have a narrower, more parochial interest than that of

the County. The County must represent the entire county and all its varied

interests, including business and economic interests of Plaintiffs and their

employees. In contrast, Proposed Intervenors are farmers, businesspeople, and a

public interest organization—all of whom have a specific and personal interest in

Ordinance 13-121’s protections, and in improving the oversight of genetically

engineered organisms. This is very different from the County’s general duty to

defend its laws.

Proposed Intervenors and their members are residents of Hawai‘i County


18

who live and farm on the island, and are personally subject to the risk of transgenic

contamination; they have their own narrower personal property interests in

ensuring that Ordinance 13-121 is upheld. Proposed Intervenors Laderman, Howe,

and Redfeather are farmers who would lose their reputation and markets if their

food were contaminated by genetically engineered crops. Laderman Decl. ¶¶ 5-7;

Howe Decl. ¶¶ 5, 11-13, 16; Redfeather Decl. ¶¶ 15-18. They are uniquely injured

even by the risk of contamination without Ordinance 13-121, because it forces

them to take onerous and costly measures to try to avoid contamination, such as

DNA testing or avoiding growing certain crops. Id. As local growers, the

Ordinance offers them a protected, GE-free market and the economic opportunity

to foster sustainable agricultural practices, local food security, and seed diversity,

without transgenic contamination. See Ordinance 13-121, § 1(3). These personal

interests of Proposed Intervenors are sufficiently distinct from the County’s

general interests. Syngenta, 2014 WL 1631830, at *6-7 (holding that “proposed

Intervenors are, or represent, individuals directly affected by the activities of

Plaintiffs and by the restrictions on those activities encompassed by [the

ordinance]” and are the direct recipients of the benefits of the ordinance, and, as a

result, “[t]heir interests in upholding the law are decidedly more palpable than the

County’s generalized interest”).

In National Association of Home Builders, the court allowed national public


19

interest environmental groups to intervene on behalf of the defendant district

agency in a suit challenging the district agency’s promulgation of a regulation

requiring construction companies to mitigate emissions of air pollution from

residential construction projects. 2007 WL 2757995, at *4. In seeking

intervention, the applicant public interest groups emphasized their individual

members’ health interests. Id. at *5. The court agreed, holding that “[w]hile

[p]roposed [i]nterveners and the [d]istrict share a general interest in public health,

the [d]istrict has a much broader interest in balancing the need for regulations with

economic considerations . . . .” Id. The court found that the defendant district’s

interest in defending the rule was motivated by other factors such as “cost and

political pressures.” Id.

Other courts similarly have found the presumption of adequate

representation rebutted where the proposed intervenors had narrower interests than

those of the defendant government agency’s general duty to uphold challenged

laws. See, e.g., Golden Gate Restaurant Ass’n v. City & Cnty. of S.F., No. C 06-

06997 JSW, 2007 WL 1052820, at *4 (N.D. Cal. Apr. 5, 2007) (in suit challenging

validity of city ordinance requiring businesses to contribute to employees’ health

care expenses, finding that “the [u]nions’ members here have a personal interest in

the enforcement of the [o]rdinance that is more narrow than the [c]ity’s general

interest because they would be among the employees directly affected by the


20

injunction of the [o]rdinance.”); Sierra Club v. Glickman, 82 F.3d 106, 110 (5th

Cir. 1996) (holding that because the government must represent the broader public

interest, the interest of the defendant agency and the proposed intervenor industry

group “will not necessarily coincide” even if they may share some “common

ground”).

Not only are Proposed Intervenors and their members’ interests narrower

than that of the County Defendant, but in other ways they are also broader than the

County’s interests. Proposed Intervenor CFS has over half-million members

across the country who are closely watching this case and have a significant stake

in its outcome. For those CFS members, an adverse decision by this Court could

affect their own ability to in the future enact ordinances creating GE-free zones

like Ordinance 13-121. Kimbrell Decl. ¶¶ 10, 22. Other CFS members live in

counties that have already passed ordinances that go further than Ordinance 13-121

and prohibit all GE crops, such as some counties in California, Oregon, and

Washington. Id. Those members also have distinct interests, as an adverse

decision in this case could erode their own hard-won protections. Defendant

County does not represent these broader interests.

Finally, Proposed Intervenors will offer unique elements to the present

litigation not shared with—and in fact neglected by—the existing parties.

Defending Ordinance 13-121 as a valid exercise of the County’s authority to


21

protect the health of its citizens and its natural resources requires knowledge of the

public health and environmental harms associated with genetically engineered crop

cultivation. Proposed Intervenors and their members have singular legal,

scientific, and policy expertise regarding such genetically engineered crops, their

impacts, and their oversight. Kimbrell Decl. ¶¶ 4-15. They can and will use this

expertise to provide the Court with the most well-versed and complete briefing

possible in defense of the Ordinance.

In sum, Proposed Intervenors have made a compelling showing that their

interests at least “may” not be adequately represented. Accordingly, they meet all

of the requirements for intervention as of right under Rule 24(a) of the Federal

Rules of Civil Procedure.

B. At a Minimum, the Court Should Grant Permissive Intervention.

Proposed Intervenors also satisfy the requirements for permissive

intervention under Rule 24(b) of the Federal Rules of Civil Procedure. As with

intervention of right, under Rule 24(b), “the Ninth Circuit upholds a liberal policy

in favor of intervention.” Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency, No.

3:12-cv-01751-AC, 2014 WL 1094981, at *2 (D. Or. Mar. 19, 2014); see, e.g.,

United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004) (“In

determining whether intervention is appropriate, courts are guided primarily by

practical and equitable considerations, and the requirements for intervention are


22

broadly interpreted in favor of intervention.”); accord Wilderness Soc’y, 630 F.3d

at 1179; City of L.A., 288 F.3d at 397. This liberal policy favoring intervention

allows for “both efficient resolution of issues and broadened access to the courts.”

Id. at 397-98.

Permissive intervention is appropriate where there is “(1) an independent

ground for jurisdiction; (2) a timely motion; and (3) a common question of law and

fact between the movant’s claim or defense and the main action.” Blum v. Merrill

Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013). Courts

also consider whether intervention would cause undue delay or prejudice. See Fed.

R. Civ. P. 24(b)(3). Importantly, under Rule 24(b), a proposed intervenor need not

demonstrate inadequate representation, or a direct interest in the subject matter of

the challenged action. Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108

(9th Cir. 2002), abrogated on other grounds, Wilderness Soc. v. U.S. Forest Serv.,

630 F.3d 1173 (9th Cir. 2011).

Proposed Intervenors meet the criteria for permissive intervention. First,

this Court has “an independent ground for jurisdiction” over Proposed Intervenors’

arguments in defense of Ordinance 13-121. See Blum, 712 F.3d at 1353. In the

Ninth Circuit, an independent jurisdictional ground for permissive intervention

exists where an applicant “assert[s] an interest” in the challenged law by presenting

defenses and arguments that “squarely respond to the challenges made by plaintiffs


23

in the main action.” Kootenai Tribe, 313 F.3d at 1110-11.

As explained in detail, Proposed Intervenors have “asserted an interest in”

the challenged legislation, supra pp. 9-16, interests that are sufficient to establish

an independent basis for jurisdiction for the purpose of permissive intervention.

Proposed Intervenors are local farmers, businesspeople, and citizens that will be

individually harmed by transgenic contamination and other consequences of

growing genetically engineered crops. They support the protections that Ordinance

13-121 provides in creating a GE-free environment and local farm economy. They

were very active in the passage of Ordinance 13-121. Proposed Intervenor CFS

has long been the national leader on the issue, working on it in many counties,

including Hawai‘i, and has an entire program dedicated to improving the oversight

of GE crops and ameliorating their adverse impacts. Kimbrell Decl. ¶¶ 4-15.

Proposed Intervenor CFS’s programmatic mission and its members’ personal

economic, health, and environmental interests, and the interests of the other

Proposed Intervenors, are at the heart of Ordinance 13-121 purpose. See City of

Los Angeles, 288 F.3d at 404 (“[T]he idea of ‘streamlining’ the litigation . . .

should not be accomplished at the risk of marginalizing those . . . who have some

of the strongest interests in the outcome.”).

Moreover, “[w]here the proposed intervenor in a federal-question case

brings no new claims, the jurisdictional concern drops away.” Freedom from


24

Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011); accord

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &

Procedure § 1917 (3d ed. 2010) (“In federal-question cases there should be no

problem of jurisdiction with regard to an intervening defendant . . . .”). Here,

Plaintiffs assert federal-question jurisdiction, Pls.’ Compl. ¶ 16, Dkt. No. 1, and

Proposed Intervenors do not seek to bring counterclaims or cross-claims. The first

criterion for permissive intervention plainly is met.

Second, Proposed Intervenors’ Motion for Leave to Intervene is “timely,”

Blum, 712 F.3d at 1353, because this case is still in its initial stage, given that

Plaintiffs filed their complaint only last month, see, e.g., Ctr. for Biological

Diversity v. Kelly, No. 1:13-CV-00427-EJL-CWD, 2014 WL 3445733, at *7-8 (D.

Idaho July 11, 2014) (intervention “timely” where applicants moved to intervene

up to ninety days after commencement of action); Schmidt v. Coldwell Banker

Residential Brokerage, No. 5:13-cv-00986 EJD, 2013 WL 2085161, at *2 (N.D.

Cal. May 14, 2013) (intervention “timely” where applicants moved to intervene

two months after commencement of action).

To further eliminate any possibility of delay, prejudice, or inefficiency,

Proposed Intervenors have filed a Proposed Answer concurrently with this Motion.

See Utica Mutual Ins. Co. v. Hamilton Supply Co., No. C 06-07846 SI, 2007 WL

3256485, at *4 (N.D. Cal. Nov. 5, 2007) (finding “little to no prejudice” from


25

granting intervention “because plaintiff has done little up to this point other than

file a motion for default judgment”). Proposed Intervenors further agree to abide

by the current briefing schedule, if the Court concludes that this schedule is

appropriate. Proposed Intervenors meet the second criterion for permissive

intervention.

Finally, Proposed Intervenors undeniably share “a common question of law

or fact [with] the main action,” Blum, 712 F.3d at 1353, because they seek to

address precisely the legal and factual issues raised in Plaintiffs’ Complaint, and to

assist the County in its defense of Ordinance 13-121 against Plaintiffs’ attacks, see

Fed. R. Civ. P. 24(b)(1)(B) (permissive intervention is appropriate where an

applicant “has a claim or defense that shares with the main action a common

question of law or fact”).

In so doing, Proposed Intervenors will significantly contribute to the Court’s

ability to effectively and efficiently understand and resolve this case. As

explained, Proposed Intervenor CFS is a recognized national expert on genetic

engineering, transgenic contamination, pesticides, and other agricultural issues,

and will thus provide this Court with a valuable and unique legal and practical

perspective, as well as the expertise necessary for fully and correctly adjudicating

sensitive and complex issues about local regulation of food production. Kimbrell

Decl. ¶¶ 3-15; see Ctr. for Biological Diversity v. Kelly, 2014 WL 3445733, at *8


26

(finding permissive intervention “appropriate” where proposed intervenors

“represent large and varied interests whose unique perspectives would aid the

Court in reaching an equitable resolution in this proceeding”) (internal quotations

omitted); accord Kootenai Tribe, 313 F.3d at 1111. Similarly, Proposed

Intervenors who are farmers and businesspeople have personal experience in the

practical consequences of allowing cultivation of GE crops, and will be able to

provide a perspective that otherwise is likely to be absent from the presentation of

the issues to the Court. Laderman Decl. ¶¶ 5-10; Howe Decl. ¶¶ 5-9, 11-13;

Redfeather Decl. ¶¶ 10-12, 15-18. Accordingly, Proposed Intervenors also meet

the third criterion for permissive intervention.

In sum, Proposed Intervenors’ substantial interests in Ordinance 13-121, and

in genetically engineered organism regulation broadly, are directly threatened by

an adverse ruling in this case. See Fed. R. Civ. P. 24, Advisory Committee Notes

(“If an absentee would be substantially affected in a practical sense by the

determination made in an action, he should, as a general rule, be entitled to

intervene.”). Therefore, if this Court denies Proposed Intervenors intervention as

of right under Rule 24(a), it should nonetheless grant them permissive intervention

under Rule 24(b).


27

III. CONCLUSION

For the foregoing reasons, Proposed Intervenors respectfully request that the

Court grant leave to intervene as of right pursuant to Rule 24(a). In the alternative,

Proposed Intervenors, and each of them, request that the Court grant permissive

intervention pursuant to Rule 24(b).



/s/ Paul H. Achitoff PAUL H. ACHITOFF (#5279) EARTHJUSTICE 850 Richards Street, Suite 400 Honolulu, Hawai‘i 96813 Telephone No.: (808) 599-2436 Fax No.: (808) 521-6841 Email: [email protected] GEORGE A. KIMBRELL (Pro Hac Vice pending) DONNA F. SOLEN (Pro Hac Vice pending) SYLVIA SHIH-YAU WU (Pro Hac Vice pending) Center for Food Safety 303 Sacramento St., 2nd Floor San Francisco, CA 94111 T: (415) 826-2770 / F: (415) 826-0507




PAUL H. ACHITOFF (#5279) EARTHJUSTICE850 Richards Street, Suite 400 Honolulu, Hawai‘i 96813 Telephone No.: (808) 599-2436 Fax No.: (808) 521-6841 Email: [email protected]

GEORGE A. KIMBRELL (Pro Hac Vice pending)DONNA F. SOLEN (Pro Hac Vice pending)SYLVIA SHIH-YAU WU (Pro Hac Vice pending)CENTER FOR FOOD SAFETY 303 Sacramento St., 2nd Floor San Francisco, CA 94111 T: (415) 826-2770 / F: (415) 826-0507 Emails: [email protected]

[email protected]@centerforfoodsafety.org




Plaintiffs,

v.

COUNTY OF HAWAI‘I,

Defendant,and

CENTER FOR FOOD SAFETY, et al.,


)))))))))))))))))

Case No.: 1:14-cv-00267-BMK

DECLARATION OFANDREW KIMBRELL INSUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION


1

DECLARATION OF ANDREW KIMBRELL

I, Andrew Kimbrell, hereby declare as follows:

Introduction and Background

1. I am the Executive Director and Founder of the Center for Food

Safety (CFS). I have personal knowledge of the matters stated herein and, if called

as a witness, could and would competently testify thereto.

2. CFS is a tax-exempt, nonprofit membership organization with offices

in Washington, D.C.; San Francisco, California; Portland, Oregon; and Honolulu,

Hawai‘i. CFS represents more than 500,000 farmer and consumer members

throughout the country, including thousands of Hawai‘i residents.

3. I founded CFS in 1997. Since its inception, I have served as a

member of the CFS Board of Directors and helped create its organizational

purpose and goals. In creating CFS, I sought to establish a nonprofit organization

that protects public health and the environment from the harms of industrial

agriculture. Chief among my concerns were biological and ecosystem

contamination from genetically engineered (GE) organisms, chemical pollution

from pesticides, and water and air contamination from factory farming.

4. Since its founding, CFS’s core mission has been to ameliorate the

adverse impacts that industrial food production has on human and animal health

and the environment. A pillar of this mission is to advocate for thorough,


2

science-based safety testing of agricultural inputs and products prior to their use.

Such testing is the only way to ensure that we can understand and minimize the

negative impacts of these products, such as environmental contamination, the

increased use of pesticides, and the evolution of resistant pests and weeds. The

other pillar of CFS’s mission is the public’s fundamental right to know: the

protection and furtherance of transparency in our food and agricultural system.

Interests: CFS’s Genetically Engineered Organism Program

5. In furtherance of its fundamental mission, CFS has always had and

continues to have a robust organizational program on genetically engineered

organisms.1 This program area includes numerous members of CFS’s science,

policy, campaign, and legal staffs.

6. CFS combines multiple tools and strategies in implementing this

program, including public and policymaker education, outreach, and campaigning.

For instance, CFS produces and disseminates a wide array of informational

materials to the general public, federal, state and local government agencies and

lawmakers, and other nonprofits regarding the effects of industrial food

production—such as growing genetically engineered agricultural products—on

public health and the environment. These educational and informational materials

1 Center for Food Safety, Issues, http://www.centerforfoodsafety.org/issues (last visited July 31, 2014).


3

include, but are not limited to, news articles, videos and other multimedia, policy

reports, white papers, legal briefs, press releases, newsletters, product guides,

action alerts, and fact sheets.

7. CFS also works directly with government officials and policymakers

at federal, state, and local levels, in order to improve the oversight of genetically

engineered organisms. For instance, on many occasions, CFS has provided expert

scientific, policy, and legal testimony to policymakers on the impacts of

genetically engineered organisms, such as the risk of transgenic contamination and

increased use of pesticides, herbicides, and chemical fertilizers. CFS staff

regularly testify or submit detailed administrative filings to federal, state, and local

regulatory agencies. CFS also regularly alerts its half-million members to current

events and regulatory processes related to genetically engineered organisms.

These alerts inform members about CFS actions, encourage them to join CFS

actions or participate individually in rulemaking processes, and to otherwise

engage their government officials on matters related to genetic engineering,

transgenic contamination, pesticide use, and other issues affecting a sustainable

food system.

8. In addition to its work at the federal level, recognizing that all levels

of government are needed to improve oversight and address the impacts of

genetically engineered organisms, CFS has also been a key architect of numerous


4

state and local efforts to protect farmers and citizens, and defend local

environments from the adverse health and environmental impacts of industrial

agriculture, such as transgenic contamination. For example, in the past decade,

CFS has assisted numerous states in passing “farmer protection” laws that provide

substantive and procedural protections for organic or conventional farmers if they

are contaminated by genetically engineered crops.2

9. CFS has also spearheaded efforts and assisted dozens of states to

introduce laws that would better regulate genetically engineered foods by requiring

their labeling.3 In 2013-14, there were seventy different legislative bills introduced

in thirty different states. Maine and Connecticut passed GE food labeling laws in

2013, and Vermont in 2014. CFS also spearheaded and co-authored GE food

labeling ballot initiatives in California in 2012, Washington in 2013, and Oregon,

upcoming in November 2014.

Interests: CFS’s County Program Work and Hawai‘i County Ordinance 13-121

10. Most directly analogous here, CFS has also spearheaded and assisted

in the crafting and passage of numerous county and municipal ordinances, across

2 Cal. Food & Agric. Code § 52305 (2008); Ind. Code §§ 15-15-6-11, 15-15-7-1 through 15-15-7-12 (2003); Me. Rev. Stat. Ann. tit. 7, § 1053 (2007); N.D. Cent. Code § 4-24-13 (2001); S.D. Codified Laws §§ 38-1-44 through 38-1-50 (2002). 3 Center for Food Safety, GE Food Labeling, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling (last visited July 31, 2014).


5

the country, aimed at improving regulation of, and reducing the harms of,

genetically engineered crops, such as transgenic contamination. These include

ordinances prohibiting the production of genetically engineered crops to prevent

their harms, including transgenic contamination in counties including, but not

limited to, Trinity County, California (2004), Marin County, California (2004),

Santa Cruz County, California (2004), Mendocino County, California (2004), and

San Juan County, Washington (2012).4 In 2008, CFS and its members previously

supported the County of Hawai‘i in passing an ordinance prohibiting the growing

of GE taro and GE coffee (2008).5 In 2013, CFS assisted the County of Kaua‘i in

passing Ordinance 960, a pesticide and GE crop disclosure and buffer ordinance.

In 2013 and 2014, CFS assisted two counties in Oregon, Jackson and Josephine,

with ordinances. Both passed via ballot initiative in May 2014.

11. None of these prior county or municipal ordinances have been

challenged in court, besides Kaua‘i County’s Ordinance 960 and now Hawai‘i

4 Mendocino County, Cal., Code tit. 10A, ch.10A.15 (protecting agriculture from “genetic pollution”); Marin County, Cal., Code tit. 6, ch. 6.92 (finding an “irreversible danger of contaminating and thereby reducing the value of neighboring crops by genetically engineered crops”); Trinity County, Cal., Code tit. 8, ch. 8.25 (protecting “agricultural industry” from “contamination”); Santa Cruz County, Cal., Code ch. 7.31 (finding “lack of adequate safeguards” for preventing “genetically engineered contamination”); San Juan County, Wash., Code ch. 8.26 (protecting “agricultural industry”). 5 Hawai‘i County, Hi., Code §§ 14-90–95 (prohibiting genetically engineered taro and coffee).


6

County’s Ordinance 13-121.

12. CFS and its members similarly assisted in the passage of Hawai‘i

County’s Ordinance 13-121. CFS and Earthjustice both provided legal

recommendations and input to the ordinance’s sponsor, Councilwoman Margaret

Wille. CFS science staff provided scientific testimony on the Ordinance. And

CFS members and residents of Hawai’i County supported the Ordinance through

testimony.

13. Finally, when necessary, CFS also engages in public interest litigation

to address the impacts of industrial food production on its members, public health,

the environment, and the public interest. Specifically relevant here, CFS is the

leading nonprofit working to address the impacts of GE crops on health and the

environment through public interest litigation.6

6 See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010); Center for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013); Center for Food Safety v. Vilsack, 502 Fed. Appx. 647 (9th Cir. 2012); Center for Food Safety v. Vilsack,636 F.3d 1166 (9th Cir. 2011); Center for Food Safety v. Salazar, 900 F.Supp.2d 1 (D.D.C. 2012); Center for Food Safety v. Salazar, 898 F. Supp. 2d 130 (D.D.C. 2012); Grant v. Vilsack, 892 F. Supp. 2d 252 (D.D.C. 2012); Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948 (N.D. Cal. 2010); Delaware Audubon Soc v. Dep’t of Interior, 612 F.Supp.2d 442 (D. Del. 2009); Ctr. for Food Safety v. Vilsack,2009 WL 3047227 (N.D. Cal. 2009); Geertson Seed Farms v. Johanns, 2007 WL 518624 (N.D. Cal. 2007); Int’l Ctr. for Tech. Assessment (ICTA) v. Johanns, 473 F. Supp. 2d 9 (D.D.C. 2007); Center for Food Safety v. Johanns, 451 F. Supp. 2d 1165 (D. Haw. 2006).


7

14. For example, here in Hawai‘i, CFS is an Intervenor-Defendant in

Syngenta Seeds, Inc. v. County of Kaua i, Civ. No. 14-00014 (D. Haw.), currently

before this Court, to protect its interests by defending the County of Kaua‘i’s

Ordinance 960, a pesticide and GE crop disclosure law, from legal challenge by

multinational chemical companies.

15. CFS has long been dedicated to raising public awareness of, and

increasing proper regulatory oversight over, the use of genetically engineered crops

in the State of Hawai‘i. For example, CFS was plaintiff and co-counsel, with

Earthjustice, in Center for Food Safety v. Johanns, a case that successfully

challenged the United States Department of Agriculture’s authorization of

experimental, open-air field trials of genetically engineered crops in Hawai‘i

without compliance with requirements of the National Environmental Policy Act

and the Endangered Species Act. 451 F. Supp. 2d 1165 (D. Hawaii 2006) (holding

that genetically engineered crop field testing violated NEPA and ESA).

Injuries

16. CFS and its members would be injured by a successful challenge to

Ordinance 13-121.

17. CFS’s substantial and longstanding organizational program on

improving GE crop oversight at the county and local level would be damaged by

an adverse ruling in the case, because it might establish a precedent limiting


8

counties’ ability to protect themselves and regulate genetically engineered

organisms. The outcome of this case could affect all U.S. counties, because it is

the first legal challenge to a county law of this kind.

18. CFS’s substantial and longstanding organizational program on

improving GE crop oversight in Hawai‘i in particular might be adversely affected

by an adverse decision in the case. Because of its year-long growing season,

Hawai‘i has become the epicenter of genetically engineered organism

experimentation and the production of commercial, genetically engineered seed

stock. This has created the risks that ordinances like Ordinance 13-121 and

Ordinance 960 are intended to address and led to their passage. It is all the more

important to CFS’s programmatic interests that Hawai‘i counties retain their

authority to regulate genetically engineered organisms.

19. In addition to CFS’s organizational interests, CFS has thousands of

Hawai‘i farmer and consumer members, many of whom live on Hawai‘i Island.

They do not want to see their island contaminated by genetically engineered

organisms, and have personal health, aesthetic, and environmental interests directly

related to the successful implementation of Ordinance 13-121. Numerous CFS

members live near areas where genetically engineered crops are being grown.

These members are especially susceptible to the health and environmental impacts

of these activities.


9

20. Cultivation of genetically engineered crops and the associated

spraying of pesticides also have a negative effect on CFS members’ use and

enjoyment of their property because the risk of transgenic contamination and

pesticide drift compromises the organic, pesticide-free food many of them grow on

their property for their personal use.

21. Additionally, cultivation of genetically engineered crops and spraying

of pesticides compromises CFS’s members’ enjoyment of their local environment,

because these activities harm native ecosystems and injure the aesthetic and

recreational interests of those who seek to protect biodiversity.

22. Finally, CFS has hundreds of thousands of members across the county

in other states that share our vision that it is important for the future of our food to

create and protect genetically engineered free zones in the United States. These

members want to retain the ability to pass such legislation in their own states and

counties (or protect the ones that they have already passed in some cases).

Accordingly, any adverse ruling in this case could similarly injure those members’

interests.

23. In sum, upholding Ordinance 13-121 and ensuring the Ordinance’s

successful implementation is crucial to CFS’s organizational interests and the

interests of its members.


10

I declare under penalty of perjury that the foregoing is true and correct to the

best of my ability.

Executed on August 1, 2014, in San Francisco, CA.

ANDREW KIMBRELL

ANNDDREWW KKIIMBBRREELLLL






UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAI‘I


Plaintiffs,

v.


Defendant,and



)))))))))))))))))


DECLARATION OF NANCY REDFEATHER IN SUPPORT OF INTERVENOR-DEFENDANTS’MOTION


1

DECLARATION OF NANCY REDFEATHER

1. My name is Nancy Redfeather. I reside on Hawai‘i Island (the Big

Island), where I have lived for twenty-eight years. I declare that I am over the age

of eighteen and if called as a witness in this action I would testify of my own

personal knowledge as follows.

2. I am a member of the Center for Food Safety (CFS). I joined CFS

many years ago because CFS represents my interest as a family farmer by working

to, among other things, protect non-genetically engineered (GE) seeds from the

risk of transgenic contamination; guard against toxic use of pesticides and

herbicides; and promote seed diversity and environmental stewardship. CFS thus

strives to protect small family farms and the environment, which ultimately

supports community food security.

3. I have confidence in legislation and the courts. CFS is instrumental in

using these avenues to promote sustainable agriculture.

4. Along with my husband, I have owned and operated a farm adjacent

to our home for sixteen years, Kawanui Farm Kona, Hawai‘i. Our farm of 1.5

acres is intensively planted with diversified crops, including coffee, nuts, spices,

fruits, and vegetables. Along with many other crops, we grow papaya and corn for

human consumption. We feed our family with the food we grow, and we also sell

it to local restaurants, distributors, and friends. I am also an agricultural educator


2

5. Our farm is not certified organic, but we use organic practices. For

example, we do not use synthetic pesticides.

6. I know that transgenic contamination occurs via many routes for

different crops, including through seed transfer and post-harvest seed mixing,

which happens regularly. I know that transgenic contamination has occurred

repeatedly in various crops and in various places across the United States, despite

the claims of the industry that it would not. For example, I am aware that

contamination has occurred in alfalfa, beets, canola, corn, and rice.

7. I know that contamination from unapproved GE varieties being field

tested has caused U.S. farmers billions of dollars in harm. For example, I know

U.S. rice farmers lost their export markets when the southern U.S. rice supply was

contaminated by a GE rice strain. I know that last summer, U.S. wheat farmers

had their export markets shut down for months due to a GE contamination incident

in Oregon that is believed to be from GE wheat field trials in Oregon conducted ten

years ago.

8. I also know that transgenic contamination is an environmental harm,

that causes, among other things, contamination of the wild and the loss of

biodiversity. For example, I also know that an escaped GE grass that was being

field trialed in Oregon escaped and continues to thrive in the wild in Oregon,

evading attempts to eradicate it.


3

9. I know that various governmental reports from bodies such as the

Government Accountability Office have criticized the United States Department of

Agriculture’s oversight of genetically engineered organisms and especially their

oversight of field trials. And I know that in prior litigation here in Hawai‘i brought

by CFS and Earthjustice, the federal court ruled that USDA did not follow core

federal environmental laws in allowing some genetically engineered crop field

trials.

10. Out of concern for transgenic contamination, we test our papaya. This

testing involves special growing and harvesting practices, which take time, and we

do the testing at our own expense. After testing our papaya, we save the seed to

ensure we will have a non-GE variety to plant in the future.

11. Other local farmers also test their crops for transgenic contamination,

at their own expense. For example, local farmers often pay about $3 to test a

single papaya tree, which can amount to a substantial expense for small operations.

Genetic engineering thus places a significant financial burden on small Hawai‘i

farms.

12. I know that GE papaya is grown near our farm, and that GE corn is

also grown on the Big Island. Further, I know that agrochemical companies use

the Hawaiian Islands as experimental testing grounds for novel GE crops that are

not approved for human consumption.


4

13. I also know that the vast majority of both experimental and approved

genetically engineered crops are engineered in order to be resistant to pesticides,

and therefore have dramatically increased pesticide usage overall in American

agriculture. I know that this intense form of agriculture can lead to harm to the

environment and crops through pesticide drift.

14. I have actively supported Ordinance 13-121. I testified many times

before the Hawai‘i County Council in support of the Ordinance. I also consulted

with the Ordinance’s author, Councilwoman Margaret Wille. Prior to Ordinance

13-121, I was actively engaged in supporting the Big Island’s 2008 prohibitions on

genetically engineered taro and genetically engineered coffee.

15. Ordinance 13-121 is important to me for many reasons. First, my

farm sales and my reputation as a farmer who does not use pesticides and who

complies with organic practices are jeopardized by the risk of transgenic

contamination, as well as the potential of pesticide drift associated with GE crops.

I know that there is no way to undo such transgenic contamination once it happens.

As a farmer who grows non-GE crops and who follows organic practices, I am

extremely concerned about the threat of transgenic contamination. I know that for

my customers and community, organic means not genetically engineered, since the

prohibition on genetic engineering is one of the fundamental tenets of the organic

system.


5

16. I am also injured because, without protections like those provided by

Ordinance 13-121, the costs of contamination prevention are borne by farmers like

me, not by the agrochemical companies that develop these seeds. I am the one

who must expend time and money for preventative measures and testing. These

injuries occur regardless of whether I am actually contaminated.

17. Moreover, because I market and sell my crops as “pesticide free” and

as grown using organic practices, if my crops are contaminated, or if there is

pesticide drift from a neighboring farm growing GE crops, I would not be able to

sell my crops at the premium they currently command.

18. Further, I worry that GE contamination would weaken my crops,

because many GE crops are more susceptible to diseases and environmental

pressures than non-GE varieties that have been selectively and traditionally bred to

thrive under local conditions. Contamination by an engineered variety would risk

the loss of these natural and traditional varieties.

19. I also am concerned about the health effects of eating transgenic food,

from GE crops. I know that the United States Food and Drug Administration does

not require premarket safety testing for genetically engineered products. I know

that they do not undertake any independent testing of those products. In fact, I

know that the whole extent of their review is a voluntary consultation process with


6

industry. I don’t think that this is sufficient to protect consumers from potential

health risks.

20. For example, I recognize the threat from certain bacterial resistance

marker genes that have been inserted into GE crops, particularly given the recent

epidemic of antibiotic-resistant bacteria. I believe we do not know enough about

the health effects of GE crops at this point in time, and cultivation of these crops

should be halted until we know more.

21. I try and eat local food as much as I can, and the loss of Ordinance

13-121 would injure me by making that food more susceptible to GE

contamination.

22. In addition, I am concerned that genetic engineering and patenting

threaten seed diversity and therefore compromise local food security. I know that

genetically engineered seeds are patented and controlled by the biotech industry,

making farmers sign contracts to buy that seed annually rather than retaining their

age-old right to save seeds. I know if a genetically engineered variety

contaminates a conventional crop, the patent follows the engineered material,

potentially making the contaminated farmer a patent violator, subject to litigation

by the biotech companies. I think that we need to protect our seed diversity by

having agricultural areas that are protected and free of genetically engineered

contamination.


7

23. Finally, I am aware that genetic engineering promotes the use of toxic

pesticides, and I am concerned that pesticide use harms humans—especially

children—and the environment. Protecting future generations is of utmost

importance to me.


8

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Dated: July ___, 2014, at ______________, Hawai‘i, Hawai‘i.

NANCY REDFEATHER NANNNNNNNNNCY REDDDDDDDFFFFFFEATHER

31 Kealakekua








Plaintiffs,

v.


Defendant,and



)))))))))))))))))


DECLARATION OFRACHEL LADERMAN IN SUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION


1

DECLARATION OF RACHEL LADERMAN

1. My name is Rachel Laderman. I reside on the Big Island, in north

Hilo/south Hamakua. I declare that I am over the age of eighteen and if called as a

witness in this action I would testify of my own personal knowledge as follows.

2. My partner and I grow fruits and vegetables and raise animals on

twenty acres of land, primarily for personal use. We practice permaculture

principles, modeled after natural ecosystems, including diversified crop production

and growing plants to support pollinators and nitrogen-fixers. Some of the crops

we grow include greens, beans, daikon, sweet potatoes, taro, papaya, lilikoi,

banana, various herbs, and cacao and sugar cane. We also pasture sheep and raise

chickens on our property. The chickens are fed exclusively non-genetically

engineered (GE) feed, which is important to the neighbors whom we sell them to.

Roughly half of our acreage is in some form of food production, including the

areas for animals.

3. In addition to practicing permaculture, we grow everything

organically, and try to minimize impact on the wider world by avoiding toxic

pesticides and other chemical inputs, and instead relying on organic and natural

methods; for example we grow azolla, pigeon pea, and soldier fly larvae to feed the

chicken, and raise rabbits (fed only plants we grow) for their manure. As is

fundamental to organic growing, we do not use genetically engineered crops.


2

4. In addition to gardening for our personal consumption, I sell the herbs

we grow and whatever leftover produce we cannot eat on our own to Island

Naturals Market and Deli and at a small local farmers market.

5. My herbs and other produce are usually labeled as “local,” and I do

sometimes label them as “organically grown,” but they are not certified organic.

Even as a small farm that is exempt from certification requirements, I understand

that I must still fulfill other organic requirements. This includes preventing

contamination from nonorganic products, such as genetically engineered crops.

Our farm would be significantly injured if any of the products we sell were

contaminated by a genetically engineered variety. We could no longer use an

“organically grown” label, we would lose our right to grow non-genetically

engineered crops, and we would lose our reputation. More importantly, I have no

interest in selling products that are not organic or that are contaminated with

genetically engineered varieties and I would not be able to use my property as I

wish to use it.

6. Ultimately, I hope to commercially develop our sugar cane, cacao,

and spices into a local, organic, single source chocolate company on the Big

Island. The same concerns I have in regards to contamination with the products I

currently sell apply to these plans as well. We want to be sure about our products

and what we are selling to our community.


3

7. The focus of our small operation is to provide local consumers quality

products with integrity. We care deeply about that and so does our community to

whom we sell our products. This is a customer base that wants to purchase from

small, local, organic producers. Not only are consumers willing to pay more for

those features, but that integrity and trust is important to us as growers. Organic

growers like me have a lot to lose by a little contamination, and the reverse is not

true. Those growing genetically engineered crops are not threatened by their

organic neighbors in the way we are threatened by cross contamination and

pesticide drift.

8. I know that transgenic contamination can happen both via

cross-pollination and through the mixing of seeds. I know that contamination

incidents have already cost U.S. farmers a great deal of money, and that

contamination has happened in many different crops, including from GE field

trials.

9. I have been personally affected by cross-contamination of genetically

engineered papaya. I received what I believed to be organic papaya seeds from

someone I trusted, and it turned out to be genetically engineered. I brought leaf

samples from fourteen of my papaya trees to a workshop that offered free testing to

determine if the papaya trees were genetically engineered. Within a few days, I

found out that two of my trees sampled were genetically engineered. After that, I


4

took an additional ten samples to the Hilo Extension office to be tested at a cost of

three dollars per sample. Based on these tests, I discovered that four more of my

trees were also genetically engineered.

10. Because I have no interest in growing genetically engineered papaya,

or any crops, I had to cut down these trees. Taking these trees down cost myself

time and money. Between me and a work-trade employee, whom I pay fourteen

dollars an hour, we both spent roughly four hours each collecting samples and

cutting down the contaminated trees, plus the time taking samples to Hilo. I plan

on testing ten more trees at the cost of three dollars per sample, and potentially

more time and money if they turn out to be genetically engineered and I have to

remove them.

11. I am concerned about the unknown long term effects of genetically

engineered papaya because it not only contains the papaya ringspot virus, but also

gene sequences of two strains of E. coli. We simply do not know the long-term

effects of growing fruit with foreign DNA in it.

12. I am concerned about the potential health and environmental effects of

genetically engineered crops. I know that the United States Food and Drug

Administration’s review of food safety is only a voluntary consultation with

industry and that they do not do any independent study or testing of the GE crops’


5

safety. I also know that GE crops cause environmental harms such as the loss of

biodiversity and the increased use of pesticides.

13. I supported Bill 113 (now Ordinance 13-121) by giving personal

testimony, writing letters, and participating in several marches and meetings of

GMO-Free Hawai‘i. I feel very strongly about the issue of genetically engineered

crops because of the excessive pesticide use associated with those crops.

14. In addition to concerns about pesticide use, I supported Bill 113

because of concerns about commercialization of the seed industry, and control of

seeds more generally. Our island is home to so many microclimates that a

particular variety of tomato may grow successfully on one side of the island, but

not on another, just miles away. It is important to allow farmers control over their

seeds, and to develop seeds that make sense in their area. Genetically engineered

crops can take away a lot of the security that comes with that variation and control.

I know that most genetically engineered crops are patented and controlled by the

patent holder.

15. I am also concerned about unleashing something, in genetically

engineered crops, that once released, cannot be put back in the bottle. Once they

are in the wild, they can get out—evidence being our papayas—and mix with wild

and agricultural plants so that growers do not know what they are growing or

harvesting anymore.


6

16. In addition to my concerns about genetically engineered crops, I also

think that Ordinance 13-121 can give the Big Island an advantage in the greater

marketplace. As more people become aware of and rightfully concerned about

genetically engineered crops, the Big Island can gain a reputation as a producer of

non-genetically engineered crops, and because of our geographic location, one

without fears of unknown contamination. The protections that Ordinance 13-121

provides will create an important economic benefit as a genetically engineered-free

protected zone.

17. In sum, I would be injured personally and professionally by any loss

of the protections provided by Ordinance 13-121.









Plaintiffs,

v.


Defendant,and



)))))))))))))))))


DECLARATION OF STEVE SAKALAIN SUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION


1

DECLARATION OF STEVE SAKALA

1. My name is Steve Sakala. I reside on Hawai‘i Island (the Big Island),

in Honaunau. I have lived on the Big Island since 2005. I declare that I am over

the age of eighteen and if called as a witness in this action I would testify of my

own personal knowledge as follows.

2. I am a member in good standing of the Center for Food Safety (CFS).

I joined CFS because CFS represents my interest as a sustainable, permaculture

farmer by working to prevent non-genetically engineered seeds from the risk of

transgenic contamination, guarding against toxic use of pesticides and herbicides,

and promoting healthier alternatives to genetically engineered (GE) crops and

industrial agriculture practices. I have personally supported the CFS Hawai‘i

office through donations, both financially and by offering to share experiences and

expertise in sustainable farming at local, public events.

3. I am the President of the Kona Chapter of the Hawai‘i Farmers Union

United. I am also a member of the State Board of the Hawai‘i Farmers Union

United. The Hawai‘i Farmers Union United is part of the national level Farmers

Union United, one of the older agricultural organizations in the country.

4. I am currently the Democratic District 5 Chair as well. I was elected

to this position in March of 2014.


2

5. I also currently hold the Vice President position on the board for a

local Waldorf charter school. The charter school is working on integrating an

agriculture model into its curriculum.

6. I am a sustainable farmer and the founder and owner of the Honaunau

EcoRetreat Farm and Education Center (Honaunau Farm). I have been a

sustainable farmer for almost twenty years. I have been a sustainability consultant

for fifteen years, including several years in West Africa. I have been organically

farming on the Big Island for nine years, five of which have been at the Honaunau

Farm.

7. The Honaunau Farm opened in 2007. We are a seven and a half acre

permaculture farm that practices organic farming. We use regenerative methods

including composting, using only organic inputs, placing our livestock on a

rotational grazing pattern, and Korean natural farming. The Honaunau Farm raises

milking sheep, chickens, ducks, and rabbits. We sell our meat to local restaurants.

As a permaculture farm we raise an extremely wide variety of fruits and

vegetables. We also have 150 macadamia trees and 100 to 150 fruit trees yielding

a variety of fruits.

8. The Honaunau Farm is also an education center. Every year we host

school groups and teach them about sustainable agriculture and organic farming.

The Honaunau Farm contains an EcoRetreat as well where people can stay and


3

relax in a retreat environment as well as learn about our farm. Between the

EcoRetreat visitors and the school groups, the Honaunau Farm has about 300 to

400 visitors per year.

9. The Honaunau Farm also has a number of residents, some of whom

are on a work exchange to learn more about sustainable farming. The Farm

usually has between ten to fourteen residents.

10. I actively support Ordinance 13-121. I testified in support of the

Ordinance a number of times in my capacity as President of the Kona chapter of

the Farmers Union. My testimony focused on the opportunities that Ordinance

13-121 provides the Big Island in terms of opening up our agricultural sector and

the good economics behind supporting sustainable farming. For example,

Ordinance 13-121 could encourage companies looking to grow organic seeds to

invest in Hawai‘i without fear of GE contamination. Ordinance 13-121 could also

serve to increase ecotourism and support the international market for organic fruits

and vegetables.

11. The loss of Ordinance 13-121 would injure me personally and

professionally by removing the important protections the Ordinance provides to

prevent harms from contamination, whether it be from GE crops or pesticides. At

this time, I am mostly concerned with pesticide drift and contamination because I

do not currently farm any crops that have GE counterparts. However, I personally


4

support Ordinance 13-121’s provisions in their entirety because it protects my right

to farm organically, and because there may be genetically engineered crops

introduced in the future that could contaminate crops I grow.


5







Plaintiffs,


Defendant,



)) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 1:14-cv-00267-BMK [PROPOSED] ANSWER OF CENTER FOR FOOD SAFETY, NANCY REDFEATHER, MARILYN HOWE, AND RACHEL LADERMAN TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF


Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, Proposed

Intervenor-Defendants Center for Food Safety, Nancy Redfeather, Marilyn Howe,

and Rachel Laderman (collectively, Proposed Intervenors) submit this Answer to

Plaintiffs’ Complaint for Declaratory and Injunctive Relief, Dkt. No. 1 (filed June

9, 2014) (the Complaint). Proposed Intervenors deny all averments in the

Complaint unless specifically admitted in this Answer.

Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Proposed

Intervenors answer the Complaint as follows:

COMPLAINT FOR DEC LARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

The first sentence of the first unnumbered paragraph of the Complaint sets

forth the identities of the Plaintiffs and contains Plaintiffs’ characterization of this

action, to which no response is required. To the extent a response is deemed

required, the allegation is denied. Plaintiffs also reference County Ordinance 13-

121 (formerly Bill 113), which speaks for itself and is the best evidence for its

content. Proposed Intervenors deny any characterization that is not consistent with

the referenced bill.

1. The first sentence of this paragraph contains Plaintiffs’

characterization of the farming of genetically engineered (GE) crops, to which no

response is required. To the extent a response is deemed required, Proposed-


2

Intervenors deny that the farming of GE crops is a critical or generally accepted

part of agriculture throughout the United States, including Hawai‘i. To the extent

that the second sentence in this paragraph alleges that only some GE crops are

engineered to resist pesticides, and that the herbicide-resistant traits increase yield

of GE crops, the allegations are denied. The vast majority of commercialized GE

crops are engineered to tolerate specific herbicides. Proposed Intervenors admit

that other crops have been engineered to be resistant to specific plant diseases,

insect pests and drought. Proposed Intervenors admit that the vast majority of

soybeans, corn, and cotton grown in the U.S. are GE varieties. Proposed

Intervenors lack sufficient knowledge or information on which to form a belief as

to the truth of the allegation in Paragraph 1 that 70-80% of foods eaten in the U.S.

contain ingredients that have been genetically engineered, and therefore deny the

allegation. Proposed Intervenors deny the remaining allegations in Paragraph 1.

2. Paragraph 2 contains Plaintiffs’ characterization of how the federal

government assures the safety of new GE crops, to which no response is required.

To the extent that a response is deemed required, the allegations are admitted in

part and denied in part. Proposed Intervenors admit that GE crops are subject to

conditions and regulations imposed by three federal agencies: the Food and Drug

Administration (FDA), the Environmental Protection Agency (EPA), and the U.S.

Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service


3

(APHIS). However, Proposed Intervenors deny that the three federal agencies’

regulatory processes constitutes a comprehensive regulatory regime that

adequately guarantees the safety of new GE crops on human health and the

environment. Instead, the three agencies’ authorities to regulate GE crops are

based on existing statutes not intended for the purpose of regulating GE organisms,

resulting in significant gaps in federal oversight and approval of GE crops.

Proposed Intervenors admit that FDA has authority to regulate GE crops under the

Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. §§ 301 et seq.

Proposed Intervenors admit that EPA regulates pesticide use under the FFDCA and

the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Proposed

Intervenors admit that APHIS has authority to review certain GE crops under the

Plant Protection Act (PPA), 7 U.S.C. §§ 7701 et seq. Proposed Intervenors deny

the remaining allegations contained in Paragraph 2.

3. Proposed Intervenors lack sufficient knowledge or information on

which to form a belief as to the truth of the allegations contained in Paragraph 3,

and therefore deny the allegations. The production and cultivation of Rainbow GE

papaya has resulted in widespread contamination of feral papaya and non-GE

cultivated papaya. Growers of non-GE papaya bear all the costs to isolate their

papaya crops from areas of GE production, to test the papaya crop on a regular

basis to ensure it has not been contaminated, and to take other measures necessary


4

to reduce the likelihood of contamination, such as bagging the papaya flowers,

even though such actions increase the cost of production.



and therefore deny the allegations.

5. The first three sentences of Paragraph 5 describe and reference

Ordinance 13-121, which speaks for itself and is the best evidence of its content.

Proposed Intervenors deny these allegations and characterizations of Ordinance 13-

121 to the extent that they are not consistent with the referenced bill. Proposed

Intervenors deny Plaintiffs’ assertion in the first sentence of Paragraph 5 that GE

crops play a central role in modern commercial agriculture and have a long history

of safe use in the U.S. and around the world. The fourth sentence of Paragraph 5

characterizes conclusions drawn by the federal government regarding the safety of

commercial GE crops, to which Proposed Intervenors lack sufficient knowledge or

information on which to form a belief as to the truth of the allegations, and

therefore deny the allegations. The remainder of Paragraph 5 asserts conclusions

of law, to which no response is required. To the extent that a response is deemed

required, the allegations are denied.


which to form a belief as to the truth of the allegations contained in the first and


5

third sentences of Paragraph 6, and therefore deny the allegations. Proposed

Intervenors deny the allegations contained in the second sentence of Paragraph 6.

THE PARTIES


which to form a belief as to the truth of the allegations contained in the first six

sentences in Paragraph 7, and therefore deny the allegations. The remainder of

Paragraph 7 contains allegations that reference Ordinance 13-121, which speaks

for itself and is the best evidence of its content. Proposed Intervenors deny these

allegations contained to the extent they are not consistent with the referenced bill.

8. The allegations contained in Paragraph 8 reference Ordinance 13-

121, which speaks for itself and is the best evidence of its content. Proposed

Intervenors deny these allegations contained to the extent they are not consistent

with the referenced bill. Paragraph 8 characterizes current GE research and threats

to the Hawai‘i orchid industry, for which Proposed Intervenors lack sufficient

knowledge or information on which to form a belief as to the truth of the

characterizations, and therefore deny them.

9. The allegations contained in Paragraph 9 reference Ordinance 13-121,

which speaks for itself and is the best evidence of its content. Proposed


with the referenced bill. Proposed Intervenors lack sufficient knowledge or


6

information on which to form a belief as to the truth of the remaining allegations

contained in Paragraph 9, and therefore deny the allegations.















Intervenors deny these allegations to the extent they are not consistent with the

referenced bill. Proposed Intervenors lack sufficient knowledge or information on

which to form a belief as to the truth of the remaining allegations contained in

Paragraph 12, and therefore deny the allegations.


7




referenced bill. Proposed Intervenors lack sufficient knowledge or information on

which to form a belief as to the truth of the remaining allegations contained in

Paragraph 13, and therefore deny the allegations.

14. Proposed Intervenors admit the allegations contained in Paragraph 14.

15. Proposed Intervenors deny the allegations contained in Paragraph 15.

JURISDICTION AND VENUE

16. Paragraph 16 asserts conclusions of law, to which no response is

required. To the extent a response is deemed required, the allegations are denied.





To the extent Paragraph 18 contains allegations of fact, Proposed Intervenors admit

that Ordinance 13-121 was enacted in, and is to be implemented in, this District.

FACTS AND BACKGROUND INFORMATION

Federal Regulation of GE Crops The Coordinated Framework

19. The first sentence of Paragraph 19 contains references to the


8

Coordinated Framework for Regulation of Biotechnology and quotes from the

Federal Register Notice proposing the Coordinated Framework, 49 Fed. Reg. 50,

856-50, 857 (Dec. 31, 1984), as well as cites to the Coordinated Framework for

Regulation of Biotechnology, 51 Fed. Reg. 23, 302 (June 26, 1986). These

documents speak for themselves and are the best evidence of their contents;

however, Proposed Intervenors deny that use of GE products is regulated by the

Coordinated Framework, and avers that the Coordinated Framework presents

policy, not regulation. The remainder of Paragraph 19 describes the roles of the

FDA, EPA, and USDA under their statutory authority and the Coordinated

Framework. Proposed Intervenors deny these allegations to the extent they are not

consistent with the referenced policy.

20. The first sentence of Paragraph 20 references and quotes from 49 Fed.

Reg. at 50, 857. This document speaks for itself and is the best evidence of its

content. Proposed Intervenors deny these allegations to the extent they are not

consistent with the referenced document. Proposed Intervenors deny that the

Coordinated Framework has been formalized and affirmed by Congress, and that

more than 100 GE crops have been cleared though the review required by the

Coordinated Framework; Proposed Intervenors avers that the Coordinated

Framework presents policy, not regulation.


9

21. Proposed Intervenors deny the allegations contained in Paragraph 21

to the extent they are inconsistent with the regulations and statutory authority they

reference.

USDA Regulation

22. Proposed Intervenors admit that USDA has authority to review

genetically engineered crops that are deemed plant pests under the PPA’s statutory

definition. Paragraph 22 quotes from 7 U.S.C §§ 7711, 7701(9), 7701(4), and

references the Coordinated Framework. These documents speak for themselves

and are the best evidence of their content. Proposed Intervenors deny these

allegations to the extent they are not consistent with the referenced statutory

provisions and document.

23. Paragraph 23 generally references the PPA and specifically quotes

from 7 U.S.C. § 7756(b). Proposed Intervenors deny that the PPA reflects a

Congressional determination that plant protection is a national problem. The PPA

speaks for itself and is the best evidence of its content. Proposed Intervenors deny

these allegations to the extent they are not consistent with the referenced statute.

24. Paragraph 24 generally references the PPA and specifically quotes

from 7 U.S.C. § 7756(b). This statute speaks for itself and is the best evidence of

its content. Proposed Intervenors deny these allegations to the extent they are not

consistent with the referenced statute. Paragraph 24 asserts conclusions of law, to


10

which no response is required. To the extent a response is deemed required, the

allegations are denied.

25. The allegations contained in Paragraph 25 reference 7 C.F.R. Part


Intervenors deny these allegations to the extent that they are not consistent with the

referenced regulations.

26. The allegations contained in Paragraph 26 reference 7 U.S.C. §

7711(a) and 7 C.F.R. § 340.3-.4, which speaks for themselves and are the best

evidence of their content. Proposed Intervenors deny these allegations to the

extent that they are not consistent with the referenced regulations. Proposed

Intervenors further deny that APHIS’s regulatory regime over field trials is

“detailed”; to the contrary, there have been documented incidents of transgenes

escaping from field trials.

27. The allegations contained in Paragraph 27 reference and quote 7

C.F.R. § 340.4(d), which speaks for itself and is the best evidence of its content.

Proposed Intervenors deny these allegations to the extent that they are not

consistent with the referenced regulation.


C.F.R. § 340.4(d), (f)(9), which speak for themselves and are the best evidence of


11

their content. Proposed Intervenors deny these allegations to the extent that they

are not consistent with the referenced regulations.


C.F.R. § 340.3, (e)(4), (e)(5), and APHIS, Notification User Guide at 17-18 (Mar.

2011), available at

http://www.aphis.usda.gov/biotechnology/downloads/notification_guidance_0311.

pdf. (last visited July 31, 2014) , which speak for themselves and are the best


extent that they are not consistent with the referenced regulations and document.


C.F.R. §§ 340.3, (c), (d)(4), (d)(6), and 340.0(b) & n.2, which speak for themselves

and are the best evidence of their content. Proposed Intervenors deny these

allegations to the extent that they are not consistent with the referenced regulations.


which to form a belief as to the truth of the first sentence of Paragraph 31, which

characterizes the USDA’s view of its own regulations, and therefore deny the

allegations. The remaining allegations contained in Paragraph 31 reference and

quote 7 C.F.R. §§ 340.3(e), 340.4(b), (c), 58 Fed. Reg. 17,044, 17,053-54 (Mar.

31, 1993), 57 Fed. Reg. 53,036, 53,040 (Nov. 6, 1992), which speak for

themselves and are the best evidence of their content. Proposed Intervenors deny


12

these allegations to the extent that they are not consistent with the referenced

regulations.

32. The first two sentences of Paragraph 32 reference 7 C.F.R. §

340.3(e)(1), 340.4(b). Proposed Intervenors deny these allegations to the extent

that they are not consistent with the referenced regulations. Proposed Intervenors

lack sufficient knowledge or information on which to form a belief as to the truth

of the remainder of Paragraph 32, and therefore deny the allegations.

33. Proposed Intervenors admit an individual may petition APHIS by

presenting significant field trial data and other scientific support for a

determination of “nonregulated status.” The last sentence of Paragraph 33

references 7 C.F.R. § 340.6, which speaks for itself and is the best evidence of its

content. Proposed Intervenors deny these allegations to the extent that they are not

consistent with the referenced regulations. Proposed Intervenors lack sufficient

knowledge or information on which to form a belief as to the truth of the remainder

of Paragraph 33, and therefore deny the allegations.

EPA Regulation

34. Proposed Intervenors admit EPA regulates GE crops pursuant to its

authority under the FFDCA and FIFRA. Paragraph 34 references 21 U.S.C. §

346a, (n)(4)-(5), which speak for themselves and are the best evidence of their


13


consistent with the referenced regulations.

35. Paragraph 35 quotes and references 7 U.S.C. §§ 136(bb), 136a, (c)(5),

136j(a)(1), 136v(b); and 40 C.F.R. pt. 152, which speak for themselves and are the

best evidence of their content. Proposed Intervenors deny these allegations to the

extent that they are not consistent with the referenced regulations.

36. Proposed Intervenors admit some GE crops have been genetically

modified to produce so-called “Plant-Incorporated Protectants,” typically proteins

that have a pesticidal effect when eat by insects. Proposed Intervenors deny the

second sentence of Paragraph 36. The remainder of Paragraph 36 references 66

Fed. Reg. 37, 772 (July 19, 2001) and 40 C.F.R. pt. 174, which speak for


these allegations to the extent that they are not consistent with the referenced

regulations.

FDA Regulation

37. Proposed Intervenors admit FDA has broad authority under the

FFDCA to regulate the safety of food and food ingredients, and that all GE crops

on the market have cleared this FDA review. Paragraph 37 references and quotes

21 U.S.C. § 301 et seq., FDA’s Role in Regulating Safety of GE Foods, available

at http://www.fda.gov/forconsumers/consumerupdates/ucm352067.htm (last


14

visited July 31, 2014), and 57 Fed. Reg. 22,984, 22,985-87 (May 29, 1992), which

speak for themselves and are the best evidence of their content. Proposed

Intervenors deny these allegations to the extent that they are not consistent with the

referenced regulations and documents.

Other Federal Regulatory Programs

38. Proposed Intervenors admit other laws also address how farmers may

market and sell various types of seed crops. Paragraph 38 references and quotes 7

U.S.C. §§ 6501-22 and 7 C.F.R. pt. 201, which speak for themselves and are the

best evidence of their content. Proposed Intervenors deny these allegations to the

extent that they are not consistent with the referenced regulations and statutes.

Proposed Intervenors lack sufficient knowledge or information on which to form a

belief as to the truth of the remaining allegations in this paragraph, and therefore

deny the allegations.

International Treaty Obligations Regarding GE Crops



and therefore deny the allegations. Moreover, the allegations in Paragraph 39

reference the World Trade Organization Agreement on the Application of Sanitary

and Phytosanitary Measures, which speaks for itself and is the best evidence for its


15


consistent with the referenced agreement.



and therefore deny the allegations.

State of Hawai‘i Regulation of Agriculture and Farming


which to form a belief as to the truth of the allegations contained in the first

sentence of Paragraph 41, and therefore deny the allegations. The remainder of

Paragraph 41 contains allegations that reference Article XI, § 3 of the Hawai‘i

Constitution, which speaks for itself and is the best evidence for its content.


consistent with the referenced constitutional provision.

42. Paragraph 42 references Article XI, section 3 of the Hawai‛i

Constitution, which speaks for itself and is the best evidence of its content.

Proposed Intervenors deny these allegations to the extent they are not consistent

with the referenced constitutional section. Paragraph 42 also lists the Hawai‛i

Pesticide Law, the Hawai‘i Right-to-Farm Act, the Hawai‛i State Planning Act,

and the Hawai‛i Agribusiness Development Corporation statutes as examples of

laws of statewide application of Article XI, section 3 of the Hawai‛i Constitution.


16

These statutes speak for themselves and are the best evidence of their contents.


consistent with the references statutes.

43. Paragraph 43 references Haw. Rev. Stat. §§ 165-3, -4, which speak for


these allegations to the extent they are not consistent with the referenced statutory

provisions.

44. Paragraph 44 references Haw. Rev. Stat. §§ 226-1, -7, which speak for


these allegations to the extent they are not consistent with the referenced statutory

provisions.

45. Paragraph 45 references Haw. Rev. Stat. §§ 163D-1, -5, which speak

for themselves and are the best evidence of their content. Proposed Intervenors

deny these allegations to the extent they are not consistent with the referenced

statutory provisions.

46. Paragraph 46 references Haw. Rev. Stat. Ch. 149A, -3, -19, which

speak for themselves and are the best evidence of their content. Proposed


referenced statutory provisions.


17

47. The first sentence of Paragraph 47 references Article XI, section 5 of

the Hawai‘i Constitution, which speaks for itself and is the best evidence of its


consistent with the referenced constitutional section. The second sentence of

Paragraph 47 asserts conclusions of law, to which no response is required. To the

extent a response is deemed required, the allegations are denied.

County of Hawai‘i Ordinance 13-121

48. Paragraph 48 contains Plaintiffs’ characterizations of the challenged

Ordinance 13-121 and accordingly does not require a response. To the extent a

response is deemed required, the allegations are denied.

49. Paragraph 49 references Ordinance 13-121, which speaks for itself

and is the best evidence of its content. Proposed Intervenors deny these allegations

to the extent they are not consistent with the referenced Ordinance. Paragraph 49

contains Plaintiffs’ characterizations of the challenged Ordinance 13-121 and

accordingly does not require a response. To the extent a response is deemed

required, the allegations are denied.



to the extent they are not consistent with the referenced Ordinance.


18






to the extent they are not consistent with the referenced Ordinance.

CAUSES OF ACTION

FIRST CAUSE OF ACTION PREEMPTION UNDER FEDERAL LAW

53. Proposed Intervenors incorporate by reference their answers to all

preceding paragraphs as though fully set forth herein.

54. Paragraph 54 characterizes when state and local laws are preempted

by federal law by referencing U.S. Const., Art. VI, cl. 2 and Hines v. Davidowitz,

312 U.S. 52, 67 (1941), which speak for themselves and are the best evidence of

their content. Proposed Intervenors deny these allegations to the extent they are

not consistent with the referenced constitutional provision and judicial authority.

55. The first three sentences of Paragraph 55 contain Plaintiffs’

characterization of the federal regulatory framework for regulating the

development, field testing, and commercial introduction of GE crops and

accordingly does not require a response. To the extent a response is deemed

required, the allegations are denied. The remainder of Paragraph 55 asserts


19

conclusions of law, to which no response is required. To the extent a response is

deemed required, the allegations are denied.

56. Paragraph 56 contain Plaintiffs’ characterizations of the challenged



57. The first two sentences of Paragraph 57 contain Plaintiffs’

characterizations of the challenged Ordinance 13-121 and accordingly do not

require a response. To the extent a response is deemed required, the allegations are

denied. The remainder of Paragraph 57 asserts conclusions of law, to which no

response is required. To the extent a response is deemed required, the allegations

are denied.

SECOND CAUSE OF ACTION PREEMPTION UNDER STATE LAW



59. Paragraph 59 references Article XI, section 3 of the Hawai‛i

Constitution, which speaks for itself and is the best evidence of its content.

Proposed Intervenors deny these allegations to the extent they are not consistent

with the referenced constitutional section.


which to form a belief as to the truth of the allegations contained in the first


20

sentence of Paragraph 60, and therefore deny the allegations. The remainder of

Paragraph 60 references Haw. Rev. Stat. Ch. 141 and lists the Right to Farm Act,

the State Planning Act, the Agribusiness Development Corporation Statute, and the

Pesticide Law, which speak for themselves and are the best evidence of their


consistent with the referenced statutes.

61. The first sentence of Paragraph 61 asserts conclusions of law, to


allegations are denied. The second and third sentences of Paragraph 61 reference

Haw. Rev. Stat. §§ 50-15, 46-1.5(13), which speak for themselves and are the best


extent they are not consistent with the statutory provisions. The remainder of

Ordinance 13-121 contains Plaintiffs’ characterizations of the challenged



62. The first sentence of Paragraph 62 references Article XI, section 5 of

the Hawai‛i Constitution, which speaks for itself and is the best evidence of its


consistent with the referenced constitutional section. Proposed Intervenors lack

sufficient knowledge or information on which to form a belief as to the truth of the


21

allegations contained in the second sentence of Paragraph 62, and therefore deny

the allegations. The remainder of Paragraph 62 asserts conclusions of law to


allegations are denied.

THIRD CAUSE OF ACTION VIOLATION OF THE INTERSTATE COMMERCE CLAUSE

OF THE UNITED STATES CONSTITUTION



64. Paragraph 64 references and contains Plaintiffs’ characterization of

U.S. Const. Art. I, § 8, cl. 3, which speaks for itself and is the best evidence of its


consistent with the referenced constitutional provision.

65. Paragraph 65 references 7 U.S.C. § 7701(9), which speaks for itself


to the extent they are not consistent with the referenced constitutional provision.

66. Paragraph 66 asserts conclusions of law and contains Plaintiffs’

characterization of the challenged Ordinance 13-121, and accordingly does not


denied.


22

67. Paragraph 67 asserts conclusions of law, and accordingly does not


denied.

FOURTH CAUSE OF ACTION REGULATORY TAKING IN VIOLATION OF

THE CONSTITUTION OF HAWAI’I



69. Paragraph 69 references Article I, § 20 of the Hawai‘i Constitution,

which speaks for itself and is the best evidence of its content. Proposed


referenced constitutional provision.




denied.




denied.


23




73. Paragraph 73 asserts conclusions of law, and accordingly does not


denied.

REQUEST FOR RELIEF

The remainder of the Complaint consists of Plaintiffs requested remedies, to

which no response is required, but in the event a response is deemed required,

Proposed Intervenors deny that Plaintiffs are entitled to the remedies requested or

any relief whatsoever.

GENERAL DENIAL

Proposed Intervenors deny each and every allegation of the Complaint,

whether express or implied, that are not expressly admitted, denied, or qualified

herein.

AFFIRMATIVE DEFENSES

1. Plaintiffs lack standing to raise some or all of the claims in the

Complaint;

2. Some or all of Plaintiffs’ claims are not ripe for review;


24

3. Plaintiffs failed to state a claim upon which relief can be granted for

some or all of the claims in the Complaint;

4. This Court lacks subject matter jurisdiction;

5. Plaintiffs failed to mitigate their damages, if any;

6. Plaintiffs have failed to join indispensable and/or necessary parties

under rule 19 of the Federal Rules of Civil Procedure;

7. Plaintiffs have improperly split a cause of action by requesting

declaratory and injunctive relief on provisions of Ordinance 13-121 in both State

and Federal Court.

8. The Court should abstain from hearing this case;

9. Plaintiff’s claims are barred by res judicata, collateral estoppel, and

the Rooker-Feldman doctrine.

INCORPORATION OF ALL APPLICABLE DEFENSES

Proposed Intervenors assert all applicable defenses pled by all other

defendants to this action, and hereby incorporate the same herein by reference.

RESERVATION

Upon further particularization of Plaintiffs claims, or upon discovery of

further information concerning Plaintiffs claims, Proposed Intervenors reserves the

right to add further defenses as may be developed during litigation.


25

DATED: Honolulu, Hawaiʻi, August 1, 2014


/s/ Paul H. Achitoff PAUL H. ACHITOFF (#5279)

EARTHJUSTICE 850 Richards Street, Suite 400 Honolulu, Hawai ‘i 96813 Telephone No.: (808) 599-2436 Fax No.: (808) 521-6841 Email: [email protected]

GEORGE A. KIMBRELL (Pro Hac Vice Pending) DONNA F. SOLEN (Pro Hac Vice pending) SYLVIA SHIH-YAU WU (Pro Hac Vice Pending) Center for Food Safety 303 Sacramento St., 2nd Floor San Francisco, CA 94111 T: (415) 826-2770 / F: (415) 826-0507




CERTIFICATE OF SERVICE

I hereby certify that, on the dates and by the methods of service noted below,

a true and correct copy of the foregoing was served on the following at their last

known addresses:

Served electronically through CM/ECF:

CHRISTOPHER P. SCHLUETER [email protected] August 1, 2014

JOSEPH KALANI KAMELAMELA [email protected] August 1, 2014

KATHERINE A. GARSON [email protected] August 1, 2014

LAUREEN L. MARTIN [email protected] August 1, 2014 Attorneys for Defendant COUNTY OF HAWAII

MARGERY S. BRONSTER [email protected] August 1, 2014

REX Y. FUJICHAKU [email protected] August 1, 2014

STANLEY H. ABRAMSON (Pro Hac Vice)

[email protected] August 1, 2014

DONALD C. MCLEAN (Pro Hac Vice)


AARON S. BRAND (Pro Hac Vice)


Attorneys for Plaintiffs HAWAIʻI FLORICULTURE AND NURSERY ASSOCIATION, et al.

KENNETH S. ROBBINS [email protected] August 1, 2014

JOHN ANDERSON L. MEYER [email protected] August 1, 2014 Attorneys for Plaintiff BIOTECHNOLOGY INDUSTRY ORGANIZATION


2


/s/ Paul H. Achitoff PAUL H. ACHITOFF (#5279)

EARTHJUSTICE

GEORGE A. KIMBRELL (Pro Hac Vice Pending) DONNA F. SOLEN (Pro Hac Vice Pending) SYLVIA SHIH-YAU WU (Pro Hac Vice Pending) CENTER FOR FOOD SAFETY

Attorneys for Proposed Intervenor-Defendants
