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September 20, 2013 Page 2 of 4 • genetically engineered crops, plants and lands by genetically engineered crops and plants without having to first wait for definitive science. As the United States Supreme Court made clear in Maine vs. Taylor (1986), the government is not required "to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees on what disease organisms are or are not dangerous before it acts to avoid such consequences." The Council finds that its authority to impose restrictions on the cultivation, propagation, [and] development, and testing of genetically engineered crops and plants to protect public and private property as well as surface waters, vulnerable watersheds, and our Island's coastal waters, is granted to it by: (1) The Hawai`i Revised Statutes, Section 46-1.5(13), which states: "Each county shall have the power to enact ordinances deemed necessary to protect health, life, and property, and to preserve the order and security of the county and its inhabitants on any subject or matter not inconsistent with, or tending to defeat, the intent of any state statute where the statute does not disclose an express or implied intent that the statute shall be exclusive or uniform throughout the State."; (2) The Hawai`i State Constitution, Article XI, Section 9 "Environmental Rights," which states: "Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law." This ordinance specifically exempts the cultivation, [development, and] propagation and development of genetically engineered papaya from prohibition because the genetic modification of papaya over the past decade has become so pervasive across this island that restricting cultivation of genetically engineered papaya would be near impossible at this time, the likelihood of genetically engineered cross pollination of papaya is reduced given the customary controlled manner of propagation, and in light of the substantial investment in controlled testing of this one crop over the past decade as the means of choice to address certain papaya diseases. SECTION 2. Chapter 14 of the Hawai`i County Code 1983 (2005 Edition, as amended) is amended by adding a new article to be appropriately designated and to read as follows: "Article_. Protecting Hawaii Island's Agricultural Heritage and Its Ecosystems [€rem-Hufm] from Genetically Engineered Organisms. Section 14-_. Purpose. The purpose of this article is to protect Hawai`i Island's non-genetically modified agricultural crops and plants from genetically modified organism cross pollination and to preserve Hawai`i Island's unique and vulnerable ecosystem while promoting the cultural heritage of indigenous agricultural practices. The prohibition of open air cultivation, propagation, development, or testing of genetically engineered crops and plants is intended to prevent the transfer and uncontrolled spread of genetically engineered organisms on to private property, public lands, and waterways.