Center for Food safety files to fight against Hawaii's small farmers Freedom to Farm!

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: achitoff@earthjustice.org
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: gkimbrell@centerforfoodsafety.org
dsolen@centerforfoodsafety.org
swu@centerforfoodsafety.org
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.
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Case No.: 1:14-cv-00267-BMK
NOTICE OF MOTION AND MOTION
OF CENTER FOR FOOD SAFETY,
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
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
Center for Food Safety
T: (415) 826-2770 / F: (415) 826-0507

EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
T: (415) 826-2770 / F: (415) 826-0507
Plaintiffs,
v.
Defendant,
and
CENTER FOR FOOD SAFETY,
HOWE, and RACHEL LADERMAN,
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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 #:
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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 Protectable2.
Interests. ......................................................................................9
The Outcome of this Case May Impair Proposed3.
Intervenors’ Interests. ...............................................................14
The Defendant County May Not Adequately Represent4.
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
288

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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
290

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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
1
See, 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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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”).
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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.
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
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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).
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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
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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
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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
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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
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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
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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
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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
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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 Represent4.
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
Center for Food Safety
T: (415) 826-2770 / F: (415) 826-0507
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EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
T: (415) 826-2770 / F: (415) 826-0507
Plaintiffs,
v.
Defendant,
and
CENTER FOR FOOD SAFETY, et al.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
DECLARATION OF
ANDREW KIMBRELL IN
SUPPORT 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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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
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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).
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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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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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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.
#: 329

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 KIMBRELLANNDDREWW KKIIMBBRREELLLL
#: 330

EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
T: (415) 826-2770 / F: (415) 826-0507
Plaintiffs,
v.
Defendant,
and
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DECLARATION OF NANCY
REDFEATHER IN SUPPORT OF
MOTION
331

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
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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.
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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.
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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.
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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
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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.
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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.
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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 REDFEATHERNANNNNNNNNNCY REDDDDDDDFFFFFFEATHER
31 Kealakekua
339

EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
T: (415) 826-2770 / F: (415) 826-0507
Plaintiffs,
v.
Defendant,
and
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DECLARATION OF
RACHEL LADERMAN
IN SUPPORT OF PROPOSED
MOTION
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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347

EARTHJUSTICE
Telephone No.: (808) 599-2436
Fax No.: (808) 521-6841
T: (415) 826-2770 / F: (415) 826-0507
Plaintiffs,
v.
Defendant,
and
)
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DECLARATION OF STEVE SAKALA
IN SUPPORT OF PROPOSED
MOTION
348

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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353

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