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HomeMy WebLinkAboutCOM 0021.001 2014-2016Margaret Wille Council Member District 9 - North and South Kohala Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 HAWAII COUNTY COUNCIL County of Hawai `i Holomua Center 64 -1067 Mamalahoa Highway, Suite C -5 Waimea, Hawaii 96743 Phone No. Hilo: (808) 961 -8027 Phone No. Waimea: (808) 887 -2043 Fax No.: (808) 887 -2072 E -Mail: mwille @co.hawaii.hi.us West Hawai `i Civic Center Bldg. A 74 -5044 Ane Keohokalole Hwy. Kailua -Kona, Hawai'i,96740 TO: Dru Mamo Kanuha, Council Chair ` and Members of the Hawaii County Council 0- FROM: argaret Wille, Council Member DATE: December 16, 2014 SUBJECT: Proposed Amendments to Resolution No. 22 -14; A Resolution Advising the Corporation Counsel to Appeal the United States Magistrate Judge Barry Kurren's Ruling on Ordinance No. 13 -121. Please find attached proposed amendments to Resolution No. 22 -14. The amendments are illustrated below in Ramseyer format with respect to the contents of Resolution No. 22 -14; material to be deleted is bracketed and stricken through; material to be added is underscored. A draft copy of Resolution No. 22 -14, Draft 2, is attached with the proposed amendments incorporated. The third Whereas clause is amended to read as follows: "WHEREAS, the Corporation Counsel is responsible to the County Council where settlement or litigation becomes an issue[;] in a case against Hawaii County, such that the Council is the ultimate decision - making branch of the County when a question concerning an appeal or a settlement versus litigation arises[;] in a case naming the Hawaii County as the Defendant; and" 2. The sixth Whereas clause is amended to read as follows: "WHEREAS, when asked to opine on whether [O - divan, e No. 13 12 1 ] Bill No. 79 was preempted by State or Federal law, Deputy State Attorney General [mod Louie] Wade H. Hargrove III took the position that [r'a'inanee No. 13 12 11 Bill No. 79 is not preempted by State [or Federal] Law[;] and declined to anal. zy e the question of federal preemption; and" C7 L� Comm. No 2'1', Serving the Interests of the People of Our Island Ref. To:_,_„ L. Hawai `i County Is An Equal Opportunity Provider And Employer Ref. Date_ 1 R 7=- December 16, 2014 Page 2 of 2 A new clause is added as the seventh Whereas to read as follows: "WHEREAS, Bill No. 79 was introduced prior to the bill that was enacted as Ordinance No. 13 -121 and provided stronger restrictions than those contained in Ordinance No. 13 -121; and" 4. The eighth Whereas clause is amended to read as follows; "WHEREAS, in Hawaii Floriculture and Nursery Association, Et Al vs. County of Hawaii, CIV. No. 14 -00267 BMK, Magistrate Barry Kurren's found that state law fully preempts County regulation of genetically engineered crops and plants and therefore Ordinance No. 13 -121 is illegal; and" MW /dh Att. A RESOLUTION ADVISING THE CORPORATION COUNSEL TO APPEAL UNITED STATES MAGISTRATE JUDGE BARRY KURREN'S RULING ON ORDINANCE NO. 13 -121. WHEREAS, the Hawaii County Charter, per Section 6 -5.1, provides that the Corporation Counsel is the County's "chief legal advisor and legal representative "; and WHEREAS, the Hawaii County Charter, per Section 3 -1, provides that the County Council is charged with "public policy formulation, as distinct and separate from the executive administration of county government "; and WHEREAS, the Corporation Counsel is responsible to the County Council where settlement or litigation becomes an issue in a case against Hawaii County, such that the Council is the ultimate decision - making branch of the County when a question concerning an appeal or a settlement versus litigation arises in a case naming the Hawaii County as the Defendant; and WHEREAS, Ordinance No. 13 -121 established provisions regulating the open air cultivation, propagation, development, or testing of genetically engineered crops or plants; and WHEREAS, the County's position has been that Ordinance No. 13 -121 is not preempted by State or Federal law; and WHEREAS, when asked to opine on whether Bill No. 79 was preempted by State or Federal law, Deputy State Attorney General Wade H. Hargrove III took the position that Bill No. 79 is not preempted by State Law and declined to analyze the question of federal preemption; and WHEREAS, Bill No. 79 was introduced prior to the bill that was enacted as Ordinance No. 13 -121 and provided stronger restrictions than those contained in Ordinance No. 13 -121; and WHEREAS, recent attempts to enact State legislation to prohibit County regulation of matters relating to health and agriculture - which would include matters relating to cultivation of genetically engineered crops, have failed; and WHEREAS, in Hawaii Floriculture and Nursery Association, Et Al vs. County of Hawaii, CIV. No. 14 -00267 BMK, Magistrate Barry Kurren's found that state law fully preempts County regulation of genetically engineered crops and plants and therefore Ordinance No. 13 -121 is illegal; and WHEREAS, the decision in this case largely relies on the reasoning in Syngenta Seeds, Inc v. County of Kauai, Civil No. 14 -00014 (D. Haw. Aug. 25, 2014), and that case is now under appeal by the County of Kauai; and WHEREAS, the Council believes the County should appeal Magistrate Judge Barry Kurren's ruling on Ordinance No. 13 -121; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the County appeal United States Magistrate Judge Barry Kurren's ruling on Ordinance No. 13 -121. BE IT FINALLY RESOLVED that the County Clerk shall transmit a copy of this resolution to the Honorable William P. Kenoi, Mayor, County of Hawaii; and the Office of the Corporation Counsel.