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
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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]
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,
Case 1:14-cv-00267-BMK-NONE Document 34 Filed 08/01/14 Page 2 of 3 PageID #: 284
2
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
Case 1:14-cv-00267-BMK-NONE Document 34 Filed 08/01/14 Page 3 of 3 PageID #: 285
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]
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 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
i
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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ii
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
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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iv
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
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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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2
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.
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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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5
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”).
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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
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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.
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
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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
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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).
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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).
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
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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]
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, et al.,
Proposed Intervenor-Defendants.
)))))))))))))))))
Case No.: 1:14-cv-00267-BMK
DECLARATION OFANDREW KIMBRELL INSUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION
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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,
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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).
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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
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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).
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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).
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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).
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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
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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.
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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.
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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
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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]
Case 1:14-cv-00267-BMK-NONE Document 34-3 Filed 08/01/14 Page 9 of 9 PageID #: 339
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]
UNITED STATES DISTRICT COURTFOR 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, et al.,
Proposed Intervenor-Defendants.
)))))))))))))))))
Case No.: 1:14-cv-00267-BMK
DECLARATION OFRACHEL LADERMAN IN SUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION
Case 1:14-cv-00267-BMK-NONE Document 34-4 Filed 08/01/14 Page 1 of 8 PageID #: 340
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.
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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.
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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
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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’
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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.
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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.
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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]
UNITED STATES DISTRICT COURTFOR 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, et al.,
Proposed Intervenor-Defendants.
)))))))))))))))))
Case No.: 1:14-cv-00267-BMK
DECLARATION OF STEVE SAKALAIN SUPPORT OF PROPOSED INTERVENOR-DEFENDANTS’MOTION
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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.
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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
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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
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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.
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Case 1:14-cv-00267-BMK-NONE Document 34-5 Filed 08/01/14 Page 6 of 6 PageID #: 353
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]
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 [PROPOSED] ANSWER OF CENTER FOR FOOD SAFETY, NANCY REDFEATHER, MARILYN HOWE, AND RACHEL LADERMAN TO COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case 1:14-cv-00267-BMK-NONE Document 34-6 Filed 08/01/14 Page 1 of 26 PageID #: 354
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-
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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
Case 1:14-cv-00267-BMK-NONE Document 34-6 Filed 08/01/14 Page 3 of 26 PageID #: 356
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
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