On November 17, the Kauai County Council overrode the mayoral veto of Bill No. 2491, which imposes significant restrictions on the use of pesticides and planting of “Genetically Modified Organisms” in Kauai County, Hawaii. These restrictions include both mandatory reporting and disclosure requirements, and significant use restrictions. If Bill No. 2491 actually goes into effect, the disclosure requirements and use restrictions can be expected to have significant adverse impacts on farming operations on Kauai.

Bill No. 2491 requires all commercial agricultural entities that purchase or use more than minimal amounts of any restricted use pesticide during a calendar year to disclose the use of all pesticides of any type during the following calendar year. The disclosure requirements include (1) posting pesticide application warning signs in the application area; and (2) notification of beekeepers, property owners, lessees, or persons occupying property within 1,500 feet of the property line of the farm, if such individuals have requested notification. Bill No. 2491 also requires all commercial agricultural entities that “intentionally or knowingly possess any genetically modified organism” to disclose the growing of such crop to the County of Kauai Office of Economic Development and the Hawaii State Department of Agriculture. The disclosure is to include: (1) a general description of the plant, (2) a general description of the geographic location where planted; and (3) dates of planting.

In addition to these mandatory reporting and disclosure requirements, Bill No. 2491 also imposes pesticide use restrictions in the form of large mandatory buffer zones. The Bill mandates that all farms or growers purchasing or using minimal amounts of any restricted use pesticide “restrict the growing of crops, except ground cover to which no pesticide is applied, and thereby restrict the application of all pesticides” within (1) 500 feet of specified residences; (2) 250 feet of any park, except hedge-like mature orchards with specific application restrictions, which may be situated within 75 feet of a park; (3) 500 feet of any dwelling (subject to specific exceptions, such as farmhouses); (4) 100 feet of a public roadway, unless the commercial agricultural entity posts warning signs no sooner than 24 hours prior to application; and (5) 100 feet of any shoreline or waterway flowing into the ocean.

On October 31, 2013, the Mayor of the County of Kauai vetoed Bill No. 2491. The Mayor stated that he was vetoing the Bill on the basis of a strong belief that “this bill is legally flawed.” The Mayor released a 70-page Legal Review/Opinion from the County Attorney assessing the legal defensibility of Bill No. 2491. The County Attorney’s opinion identifies numerous legal vulnerabilities of Bill No. 2491, under both State and Federal law. Among the legal vulnerabilities identified by the County Attorney are: (1) The County Council’s attempt to regulate certain farming operations as nuisances is contradictory to the express language of the Hawaii Right to Farm Act, which strictly limits the circumstances under which farming operations in Hawaii can be deemed to be a nuisance. (2) Bill No. 2491 likely is impliedly preempted under Hawaii State law. (3) Bill No. 2491’s provisions related to genetically engineered crops may be preempted by Federal law. (4) As drafted, Bill No. 2491 uses certain terms in ways that are inconsistent with State and Federal law and thus could be subject to challenges that it is vague, and/or arbitrary and capricious. (5) Bill No. 2491’s mandatory disclosure provisions could be deemed inconsistent with State trade secret protections. (6) Bill No. 2491’s mandatory disclosure provisions may be preempted by Federal law. (7) It is unclear whether there is a rational relationship between the purchase or use of restricted use pesticides and the prohibition on growing any crops on specified buffer zones, regardless of whether any pesticides are used on crops in those areas. Lack of a rational relationship between the possession and use of pesticides approved and registered at the Federal and State levels, which have been determined, as required by statute, to not cause unreasonable adverse effects, and the County Council’s proposed prohibition of growing any crops on specified farmland could render this provision an invalid exertion of the County’s police powers; moreover, (8) the prohibition against growing crops on land zoned for agricultural use likely will be found to be in conflict with State law and, hence, preempted. (9) The County Attorney also opined that certain administrative provisions in Bill No. 2491 could be found to violate Hawaii State separation-of-powers principles.

The County Council override of the mayor’s veto means that Bill No. 2491 will go into effect in nine months, absent legal action to halt its implementation. Given the potential precedent of Bill No 2491, it will be important to monitor ongoing developments regarding the implementation of the Bill, including possible legal challenges.

To see a copy of the bill and the mayor’s veto letter click here.