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Overrode

Dying 2491 revived by new council member, voted into law

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Dennis Fujimoto/The Garden Island

Kauai County Council members Tim Bynum and Gary Hooser greet supporters after the council voted to override the mayor's veto of Bill 2491, Saturday.

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LIHUE — Bill 2491 is headed for the Kauai County law books.

The controversial bill’s five-month legislative saga closed a major chapter Saturday, when the Kauai Council voted 5 to 2 to override the mayor’s veto.

“We passed the bill!” a joyous and emotional crowd screamed repeatedly in front of the Historic County Building after the vote came in around 12:30 p.m.

The law, which will go into effect in nine months, will require the island’s four biotech seed companies to disclose their use of pesticides and genetically modified crops. Kauai Coffee, the country’s largest coffee grower, will also be affected.

In the end, 2491’s fate fell on the shoulders of the council’s newest member, Mason Chock, who was sworn in Friday as the replacement for former Council Vice Chair Nadine Nakamura.

While some had urged Chock to recuse himself from the vote because he was so new to the debate, he said that was not an option for him — that he had “been called to act.”

“If I’ve been given the opportunity to make a difference in the health of a child’s life, I’m going to take it,” he said, causing those inside the council chambers to gasp and cry in approval. “So let’s take the step. I’m all for overriding the veto on Bill 2491.”

Chock’s vote officially reversed the first-ever veto of a bill by Mayor Bernard Carvalho Jr. in his five years in office.

Five votes is the minimum required to override a veto. Council members Ross Kagawa and Mel Rapozo voted against overturning it.

Those gathered inside the council chambers and in front of the building erupted in applause. People cried and hugged one another.

County oversight over the island’s largest agricultural companies, mandatory disclosure of pesticide use and GMOs, buffer zones and a comprehensive study of the impacts of the industry are on the horizon.

And so too may be a lawsuit.

Saturday’s override is the latest twist in what has brought national attention to the Garden Isle. Last month, the council passed the bill by a 6-1 vote, only to have it vetoed by the mayor Oct. 31.

While he has said he supports the bill’s intent, Carvalho questions its legality. On Saturday, he attempted to explain his position once more, but to no avail.

“The bottom line is this,” he told the council. “I cannot, in good conscience, support 2491 as written, because I do not believe the county has the legal authority to do what is proposed. That has been my message from day one.”

However, he said he would honor the council’s decision and continue to work with his administration to determine how to implement the new law.

“While a legal challenge is expected, and that may prevent us from immediately implementing 2491, I can assure the public that nothing will stop us from moving forward as quickly as possible with the public health study, working with the state to ensure the voluntary program gets off the ground in a timely manner, and lobbying the legislature for additional resources for enforcement on Kauai,” he said in a written statement issued shortly after the council’s decision.

The veto override came just days after the Hawaii Department of Agriculture announced details of a new voluntary program related to pesticide use on Kauai. It is scheduled to go into effect Dec. 1 and applies to the five companies mentioned in Bill 2491, including DuPont Pioneer, Dow AgroSciences, BASF, Syngenta and Kauai Coffee by asking the companies to voluntarily disclose their pesticide use to the public.

In addition to implementing voluntary disclosure, the department plans to establish a “Kauai Agricultural Good Neighbor Program” to provide more information and education on pesticide use on the island, according to the DOA release.

Some, including council members Kagawa and Rapozo, applauded the state’s announcement. Others said it was nothing more than a last-minute effort to prevent the bill from becoming law.

Councilman Gary Hooser, who co-introduced the measure in June, called it insulting.

“They insult me. They insult this council. They insult our community,” he said Thursday, before the meeting was recessed. “They think we’re fools. It’s ridiculous. To think they’re going to come up here on the last day and save us with a volunteer compliance. It does nothing.”

On Thursday, it appeared 2491 was headed for defeat after Kagawa indicated he would not be supporting an override, which requires five votes. His no vote would have swung the outcome from 5-1 to 4-2, with Rapozo also set to vote against.

That’s when Hooser called for a recess, which would allow time to fill Nakamura’s empty seat. Just like Chock’s selection, the recess was supported by four votes, with Kagawa and Rapozo as the minority.

Rapozo expressed his disgust with the decision, and said it was unfair and inappropriate to put the burden of an override on Chock. It was only after the bill was headed for defeat that a seventh member became important, he said.

“The reality is we should not be here today,” Rapozo said. “The reality is this should have been resolved at the last meeting.”

Recesses, Rapozo said, are meant for bathroom breaks and time-outs, not selecting new members.

“The integrity of this process has been compromised in this,” he said. “And imagine, all of you out here who are shaking your head, nodding your head, imagine if the vote was the other way. Imagine if it was a different result … This place would have erupted in chaos. You know that. I know that.”

Hooser argued the council’s actions Thursday were both appropriate and legal. If there has been any manipulation of the process, Hooser argued it was the appointment of former Council Chair Nadine Nakamura as the county’s managing director by Carvalho last month.

“That’s where the disruption occurred,” he said. “I think that as a rule, a body, we will make much better decisions today and every day when we have a canoe that is full. We have seven members here.”

Nakamura voted in favor of Bill 2491 twice — both at the committee and full council levels — before starting her new position Nov. 1.

The other final candidate for Nakamura’s empty seat Friday was KipuKai Kualii, who Yukimura pointed out is in favor of 2491.

During her closing comments, Yukimura talked about how quick people are to throw out the word “corruption” when things don’t go their way.

“When the bill was first introduced and deferred for one month, the pro-2491 people thought, ‘must be corruption,’” she said. “And then when the mayor vetoed the vote, again some of the 2491, pro-2491 side, said, ‘corruption!’ And then now, when the council recesses, hopefully to secure an override by letting the seventh member vote, now the anti-2491 says, ‘corruption,’ when, in fact, I believe in all three cases, as council member Hooser eluded to, it was just a matter of good-hearted, intelligent, reasonable people disagreeing and coming to different conclusions.”

Whether the county ends up in court over the measure is yet to be seen. Some attorneys representing seed companies have said they would challenge the bill in court, claiming its preempted by state and federal law. But several attorneys and law firms have promised to defend the bill pro-bono. And several council members have expressed a willingness to fight it out.

Attorneys representing the agrochemical companies have assured the county the bill is illegal. Others, including those from Earthjustice and the Center for Food Safety, have promised it’s solid.

Yukimura said no one really knows “until the court speaks.”

“If it’s legal then we can move ahead,” she said. “I’m not sure why anybody, on either side of the issue, is opposing going to court. And the only way we can go to court is through a bill.”

When asked how he felt after Saturday’s vote, Hooser said “very, very good.”

Bill 2491, according to Hooser, asks for a few basic, simple things.

“Just give us good information,” he said. “Stop spraying next to schools. And let us study the issue to determine the safety of our community.”

Last to speak Saturday was Council Chair Jay Furfaro, who said the major difference he sees between the state’s voluntary program and Bill 2491 are the words “may” and “shall.”

“We have nine months to make it a ‘shall,’” Furfaro said. (Gov. Neil Abercrombie) is saying he’s going to work in the next two weeks to make it happen voluntarily.”

When speaking with the mayor during Saturday’s meeting, Chock, owner of the outdoor education company Kauai Team Challenge, said he is typically an advocate of “less is more.”

“However, let’s call this overcompensation for what could be, and err on the side of safety here, to continue to do more than less,” he said.

Chock also discussed the divisiveness of the bill and how it has “fractured our community.”

“My hope is that my action today will be a catalyst for healing to begin,” he said. “I believe healing will not begin in this issue and will not go away until we unfold the truth, and validate the concerns being questioned.”

• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or cdangelo@thegardenisland.com.

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Dennis Fujimoto/The Garden Island

Kauai County Council members Tim Bynum and Gary Hooser greet supporters after the council voted to override the mayor's veto of Bill 2491, Saturday.

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