“The reason this ordinance (Ordinance 960) was passed is the State has not stepped up to protect the people as they should.” --- Paul Achitoff, Esq., Managing Attorney, Earth Justice Mid-Pacific Regional Office The State of Hawaii: The Hawaii Legislature, The Hawaii Department of Agriculture and The Hawaii Department of Health have deferred to the County Governments to take affirmative action for their Communities.

1. SYGENTA SEEDS, INC., ET. AL. V. COUNTY OF KAUAI, Civ. No. 14-
00014 BMK (U.S. Dist. Ct. Hawaii) August 25, 2014
“The decision vindicates [Kauai] Mayor Bernard Carvalho Jr., who vetoed
the bill on advice from the [Kauai] County Attorney's office that it wouldn't
withstand a legal challenge.
Judge [Barry M.] Kurren agreed with Margery Bronster [Former, Attorney
General, State of Hawaii] and Paul Alston [Alston Hunt Floyd & Ing] —
attorneys for the seed/chemical companies [Sygenta Seeds, Inc., Sygenta
Hawaii LLC, Pioneer Hi-Bred International Inc, Agrigenetics, Inc., and
BASF Plant Sciences LPs] — who argued the counties have no inherent
power, but only the authority granted to them by the state, and that Hawaii
statutes already designate the state Department of Agriculture as the entity
charged with regulating pesticides.
He [Judge Kurren] found that the Board of Agriculture and Department of
Agriculture clearly have authority to regulate the distribution and use of
certain pesticides, and are empowered to conduct inspections:
That counties and local governments are wholly
absent from this framework of rulemaking, oversight,
and enforcement evidences the legislature’s intent
that the State have exclusive authority over pesticide regulation.”
[Emphasis and Clarification Supplied]
SOURCE: KauaiEclectic. http://kauaieclectic.blogspot.com/2014/08/judge-
strikes-down-kauai-gmopesticide.html

2. Judge strikes down controversial Kauai pesticide and GMO law
KITV 4 – Pete Caggiano
5:50 p.m. Aug 25, 2014
Kauai Mayor Bernard P. Carvalho:
“We’re very happy the Court has ruled in a timely manner and we’re
happy to have a verified legal analysis of Ordinance 960.
I think we could have avoided I believe some of this legal action that was
taken by simply getting the right people gathering with the State Entities
Dept of Health Dept of Agriculture holding everyone responsible for there
duties and responsibilities in this particular case. At the heart of the
problem is the concern of the amount and type of pesticides used on GMO
crops.”
Paul Achitoff Earth Justice Attorney:
“These are toxic chemicals there are no question about that and we can
debate the legality of it but peoples health is at stake. The reason this
ordinance was passed is the State has not stepped up to protect the people
as they should. Agribusinesses feel the right protections are already in
place.. Saying "This is a major victory for Hawaii's agricultural industry
and for farmers everywhere who use accepted and standard farming
practices.””
SOURCE: KITV 4. http://www.kitv.com/news/judge-strikes-down-
controversial-kauai-pesticide-and-gmo-law/27728202#!bLvg0j

3. THE HAWAII PESTICIDE LAW
HAWAII REVISED STATUTES CHAPTER 149A
“The Hawaii Pesticide Law is the State of Hawaii’s main law for regulating
pesticide users and distribution. This law is the basis of the pesticide rules
developed and enforced by the Hawaii Department of Agriculture.”
SOURCE: Hawaii Department of Agriculture, Plant Industry Division,
Pesticides Branch. Hawaii Revised Statutes, Hawaii Pesticides Law,
Chapter 149A.
http://pestworld.stjohn.hawaii.edu/studypackets/Ch149A_Condensed.pdf
LEGISLATIVE HISTORY OF HRS 149A
SOURCES:
1. State of Hawaii - House Journal – Regular Session 1971, pp. 1037, 1080;
2. State of Hawaii - Senate Journal – Regular Session 1971, pp. 780, 972;
3. State of Hawaii - House Journal – Regular Session 1972, pg. 1049.
STATE OF HAWAII - HOUSE JOURNAL – REGULAR SESSION 1972,
CONFERENCE COMMITTEE REPORTS, pg. 1049
Conf. Com. Rep. No. 5 on S.B. 13
The purpose of this bill is to regulate the use and application of
pesticides to assure their safe and proper use with minimum adverse
effect on the environment. [Emphasis Supplied}

4. Your Committee on Conference feels that the purpose of this bill will
be accomplished by amending Chapter 149, Hawaii Revised Statutes by:
(1) Changing “economic poison” to “pesticide” wherever it appears
in this chapter.
(2) Creating an advisory committee on pesticides to help formulate
rules and regulations.
(3) Requiring pesticide dealers and wholesalers to obtain annual
licenses and to keep records of sales of certain pesticides;
(4) Regulating the use and application of pesticides by providing
means and penalty for the enforcement of such prohibition.
Your Committee on Conference recognizes that pesticides are vital to
the community in crop and livestock production as well as controlling
disease-carrying insects and general household pests. With appropriate
controls now, pesticides can contribute to mankind with minimum effects
on the environment.
Your Committee on Conference, after careful consideration,
recommends several amendments:
(1) To realize a fairer representation of the community, your
Committee has added three at-large members to the advisory
committee. In addition to helping formulate rules and
regulations on pesticides, the committee’s duties have been
expanded to advising the department on pesticide problems.
(2) To control the use of pesticides, the department shall establish
two classes of pesticides: (a) general use and (b) restricted use.
Provision shall be made for a system of control over distribution
and use of certain pesticides purchased by the consuming public.

5. (3) To regulate all sales and distribution of pesticides, retailers have
been added to those required to have annual licenses and to keep
records when selling, soliciting or receiving orders for restricted
pesticides.
(4) To provide the greatest degree of safety and environmental
protection, all pesticide applicators, public and private, must be
certified in order to purchase and use restricted pesticides.
However, provision is to be made for general supervisory control
and responsibility without requiring every laborer to be certified.
(5) To provide for better coordination and protection, the board in
consultation with the director of health, where human health is
affected, shall establish for registration and disposal of
pesticides.
(6) Certain rules and regulations are to be promulgated affecting the
cancellation or suspension of applications for the use of
pesticides where the use of pesticides will result in “substantial
adverse impacts on the environment”.
(7) To protect public health and safety, the chairman of the
department, in consultation with the advisory committee, and
with the approval of the director of health, may ban the use of
certain pesticides when they pose an “imminent hazard”.
(8) The enforcement sections of the bill have been changed by
deletion of a prison sentence. Your Committee feels that the fine
is sufficient control and that a jail sentence would certainly pose
an extreme hardship on a small farmer.
(9) The Authority to Inspect section has been added which
authorizes the department to examine and inspect application
methods and equipment according to law. Your Committee feels
that this provision is necessary to monitor and educate the users
of pesticides in order to carry out purposes of this Act.

6. (10) However, this section shall not be considered as an infringement
on any person’s constitution right against unreasonable searches
and seizures as protected by the 4th and 14th amendments of the
Federal Constitution. Your Committee has made the intent clear
by requiring that such inspections shall be made “according to
law.”
(11) The appropriation section has been deleted. Your Committee
has been assured by the department of agriculture that funds
will not be necessary until such time as procedures are
established by the department and advisory committee.
Your Committee on Conference is in accord with the intent and
purpose of S.B.13, S.D. 1, H.D. 1, as amended herein, and recommends its
passage in the form attached hereto as S.B. No. 13, S.D. 1, H.D. 1 C.D. 1.
Representatives
Stanley H. Roehrig,
Ralph K. Ajifu, and
Ronald Y. Kondo
Managers on the part of the House
Senators
Kenneth F. Brown,
Donald D.H. Ching, and
Percy K. Mirikitani
Managers on the part of the Senate

7. Compare Intent and Purpose of HRS 149A and
H.B. No. 174
H.B. No. 174 H.D.1
H.B. No. 174 H.D. 2
H.B. 174. “To require, beginning January 1, 2014, the specific labeling of
any food or raw agricultural commodity sold in the State that contains or
was produced with a genetically engineered material.”
Source: Hawaii State Legislature, 2013.
http://www.capitol.hawaii.gov/session2013/CommReports/HB174_HD1_
HSCR253.htm
H.B. No. 174 H.D. 1. “The purpose of this measure is to require, beginning
January 1, 2014, the specific labeling of any food or raw agricultural
commodity sold in the State that contains or was produced with a
genetically engineered material.”
Source: Hawaii State Legislature, 2013.
http://www.capitol.hawaii.gov/session2013/CommReports/HB174_HD1_
HSCR253_.htm
H.B. 174, H.D. 2. “The purpose of this measure is to inform consumers
about the presence of genetically engineered organisms as foods or food
ingredients, by, among other things:
(1) Requiring that genetically engineered imported produce is properly
labeled if available for sale or distribution;

8. (2) Making the labeling of genetically engineered produce a condition
and requirement for importation into the State;
(3) Authorizing the valid labeling of non-genetically engineered foods;
and
(4) Creating a private cause of action for mislabeling of non-genetically
engineered foods.”
Source: Hawaii State Legislature, 2013.
http://www.capitol.hawaii.gov/session2013/CommReports/HB174_HD2_
HSCR924.htm
H.B. No. 174, H.B. No. 174 H.D.1, H.B. No. 174 H.D. 2 were deferred to
the 2014 Legislative Session. No action was taken by the Hawaii
Legislature. The 2014 Hawaii Legislature has adjourned, sine die.
RECENT AMENDMENTS TO HRS 149A
HB673 HD2 SD2 CD1 Relating to Pesticides - ACT 105 (13), June 14, 2013,
“The purpose of this Act is to better address the potential public health and
environmental issues related to pesticides by requiring: the online
publishing of certain restricted use pesticide records, reports, or forms; and
a study of other states’ reporting requirements for certain pesticides.”
SOURCE: GOVERNOR’S MESSAGE NO. 1205.- June 14, 2013.
http://www.capitol.hawaii.gov/session2013/bills/GM1205_.PDF

9. STATE REPORTING REQUIREMENTS FOR GENERAL USE
PESTICIDES
Legislative Reference Bureau, State Capitol, Honolulu, Hawaii 96813
Report No. 3, 2013
FOREWORD
“This Study was prepared in response to section 3 of Act 105, Session Laws
of Hawaii 2013, that directed the Legislative Reference Bureau to determine
whether other states impose reporting requirements on pesticides that do
not fall within the definition of a "restricted use pesticide," as that term is
defined under the Hawaii Pesticides Law (chapter 149A, Hawaii Revised
Statutes).
The Bureau extends its appreciation to the National Conference of State
Legislatures, National Pesticide Information Center, and Hawaii Farm
Bureau Federation for assisting the Bureau in this study.”
Hawaii Pesticides Law
“The sale and use of pesticides in Hawaii is regulated under the
Hawaii Pesticides Law, which is codified as chapter 149A, Hawaii Revised
Statutes. Section 149A-2, Hawaii Revised Statutes, defines the term
"restricted use pesticide" as:
(1) A pesticide or pesticide use classified by the Administrator, EPA,
for use by certified applicators or competent persons under their
direct supervision and so designated on its label; or

10. (2) A pesticide or pesticide use classified by the [Board of
Agriculture] for use by certified applicators or competent persons
under their direct supervision.
Pesticides that do not fall within this definition are considered general use
pesticides or nonrestricted use pesticides.
There are no reporting requirements under the Hawaii Pesticides
Law that apply to general use pesticides or nonrestricted use pesticides.
Instead, like federal law, recordkeeping and reporting requirements are
directed to the sale and use of restricted use pesticides. For instance,
licensed dealers are required to maintain records of all sales, distributions,
deliveries, thefts, spills, or other activity affecting the amount of restricted
use pesticides at each sales outlet. A copy of these records must be
submitted to the Department of Agriculture's Plant Industry Division on a
monthly basis. Similarly, certified applicators are required to maintain
records of all applications of restricted use pesticides for a period of two
years and must make such records available for inspection by the
Department of Agriculture's Plant Industry Division.”
[Citations Omitted]
SOURCE: Legislative Reference Bureau.
http://lrbhawaii.info/reports/legrpts/lrb/2013/act105_slh13.pdf

11. HB1514 HD1 SD2 CD1 Relating to Agriculture - Coffee Berry Borer -
ACT 105(14), June 19, 2014
“The purpose of this Act is to appropriate moneys for the development and
implementation of a pesticide subsidy program to assist coffee growers
with offsetting the cost of purchasing pesticides containing Beauveria
bassiana, a naturally occurring fungus known to cause mortality in coffee
berry borers. SECTION 2. Section 149A-13.5, Hawaii Revised Statutes, is
amended … “
SOURCE: GOVERNOR’S MESSAGE NO. 1206, June 19, 2014.
http://www.capitol.hawaii.gov/session2014/bills/GM1206_.PDF
CONCLUSION
“The reason this ordinance (Ordinance 960) was passed is
the State has not stepped up to protect the people as they should.”
Paul Achitoff, Esq.
Managing Attorney
Earth Justice Mid-Pacific Regional Office