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GMO & You: A MAUIWATCH LEGAL GUIDE to the GMO Initiative

GMOs. Talk about a loaded issue.

Maui is facing a historic vote on the Voter Initiative: Genetically Engineered Organisms. There’s been arguments for and questions about this initiative on all sides. Some are true, some are misleading, and some are patently false. While I have my own (strong) opinions on whether GMOs should be allowed in our biosphere or our food, the following isn’t meant to be about the science of Genetically Modified Organisms, this is about this particular initiative, and what is written in the law.

A violation costs $10,000 per day.

Yes. In no uncertain terms, yes. It is uncertain is whether the Department of Environmental Management (DEM) would have to get the approval of a court to assess the fine. The plain language appears to be “no”, but The DEM would definitely need approval of a court for an injunction to stop the person or business from the growth of these crops. Because of the later paragraphs, it sounds as though the $10,000 may only be applicable after the court grants the injunction, but that interpretation takes some liberties with the plain language of the law to get there.

Either way, the DEM has an option of giving a $10,000 fine, or no fine. There is no in between or adjustments based on background, extenuating circumstances, or amount of crops. One plant or one million acres, it’s $10,000 per day.

There is also a criminal penalty.

Yes. And a person or business is subject to both. Conceivably this is because it is hard to put a business in jail and hard to fine a front-line supervisor $10,000 per day they don’t have.

Compare recent “puppy mill” cases in Oahu, where the business dissolves and the owner gets away. The manager on duty declares “I just followed the owner’s directions, I thought that was how we are supposed to raise the puppies.” The law written this way punishes both the business and the planters on the front line.

But I don’t know that it is GMO

Then you’re not guilty and can’t be fined. Very clearly the law is “knowingly” which is that you need to be aware of the fact that these plants are GMO. The law seems to foresee a way the Department of Environmental Management could inform a person that their crops are GMO, or test a person’s plants, but how is not explicit.

“It’s going to require the county to become very invasive in that we’re going to have to go to almost every single person’s house, (inspect) every tree that’s there, be able to identify in our forests, in our pastures, all the potentially infested GMO products and somehow be able to control it.” — Mayor Arakawa

Via huffingtonpost.com/

No. Almost ludicrously laughably no. Nothing in the law requires the county to go door-to-door. Compare the fact that “driving without a driver’s license” is against the law. We all know it happens regularly, but nothing in the law requires the County to go car-to-car and check all licenses. Clearly certain types of firearms are illegal (and arguably, much more dangerous than GMO crops), yet nothing allows the County to go door to door to collect guns. There is nothing in the law that requires the creation of jackbooted GMO shock troops.

Furthermore, the law is very forward thinking in this one regard, it allows any citizen to bring a request, at their own expense, for a GMO injunction before a competent judge. If that party is successful in winning the injunction, the Court may remunerate the attorney’s fees to the person who brought suit. This is common in civil rights laws, where using the courts would bring very little if any financial victory, but without a lawsuit, a school would never be desegregated. The law generally allows the attorneys who spend their time fighting for the right side to have the attorney’s fees paid, since otherwise poor kids who just want an education don’t have enough money to pay attorney’s (often higher) fees to do the right thing.

Is it a farming ban or is it a moratorium?

Yes. For the time being there is no difference. This is a “moratorium”, as it sort of contemplates that, once certain conditions are met, the ban will be lifted. That’s the only difference between the two. But both sides are correct, it is both a moratorium and a ban on GMO crops and experimentation.

Can Monsanto sue under patent law over “transgenic contamination”?

Yes. Absolutely. The initiative specifically refers “transgenic contamination” as “the unintended comingling of GE crops with non-GE crops”. Currently, Monsanto knows this happens and has committed to not currently exercise their patent rights over such fields. (see letter X- HERE ) It is arguable whether they have or not, as farmers have asserted as a defense to lawsuits that they were “unaware” they had GMO seed. This is an internal policy and does not have the binding power of law behind it. They could, if they wished, change this policy in a instant. This policy is also not binding on Dow, Sygenta, or any other company. In response to requests to abdicate their right to sue farmers with only trace patented traits, it is widely reported Monsanto responded “A blanket covenant not to sue any present or future member of petitioners’ organizations would enable virtually anyone to commit intentional infringement.”

I write that last sentence with an asterisk. I was unable to find the original quote anywhere. On the other hand, I am also unable to find anything on the Monsanto site that abdicates their future rights to sue over trace traits, so the quote sounds correct.

FORMER HONOLULU PROSECUTOR , MAYOR AND CIVIL BEAT COLUMNIST PETER CARLISLE’S VIDEO

Peter Carlisle @ 0:27: You can get an entire year in jail if you violate it…. Somebody’s growing a papaya and someone comes and waters it, like their spouse, then they’re an accomplice

This is misleading. You “can” get a year of jail. You won’t. Unless you deserve it.

First, the spouse wouldn’t be an accomplice, they would be a violator. That part of the law is explicit. but Peter Carlisle is also aware that very rarely on someone’s first misdemeanor offense do they do one day in jail, let alone a year. That’s why he says “can” instead of “will”. Factors such as magnitude of the criminal enterprise or prior criminal record often govern if someone does a day, let alone a year. Sentences are meant to match the crime, and the year is the maximum, not the target.

During Peter Carlisle’s tenure as the Prosecuting Attorney on Oahu, his office absolutely prosecuted wives for being part and parcel of drug operations, even something so small as being in the same room with drugs, or “dusting the box marijuana was in”. The Hawaii Supreme Court actually had to inform the Honolulu Prosecutor’s office that they were overreaching in these wife cases. (see State v. Moniz, 92 Haw. 472, 992 P.2d 741 (1999)).

Also, watering one time is almost inarguably de minimis, or just too small to fall under “cultivate, raise, or grow”. It is not the type of triviality criminal law is designed to contend with.

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About Marcus Landsberg

Marcus Landsberg is a political & senior judicial analyst for MAUIWatch and President of the Landsberg Law Office. His successful criminal defense practice allows him to represent pro bono cases of interest in the community such as the Honolulu Food Trucks, and MAUIWatch.

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