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LIHUE — The County of Kauai was officially served Thursday afternoon with a federal lawsuit by three of the island’s largest agricultural companies.

Last week, Syngenta, DuPont Pioneer and Agrigenetics Inc., a company affiliated with Dow AgroSciences, filed the complaint in U.S. District Court in Honolulu in an attempt to block implementation of County Ordinance 960 (formerly Bill 2491) related to pesticides and genetically modified crops.

In response, the county has begun its process of soliciting pro-bono legal representation — something a number of attorneys promised during the bill’s legislative saga.


Firms interested in defending the county have until Jan. 30 to submit a response for consideration.


In conjunction with is solicitation, the county attorney defines pro-bono to mean “professional work undertaken voluntarily and without payment as well as donation of all related litigation and collateral costs and expenses, including but not limited to court costs, court reporter costs, travel and per-diem expenses, copying expenses, legal research expenses, communication expenses (and) expert fees,” states a release sent out Friday.


Local attorney Teresa Tico, the former head of the Kauai Bar Association, and Peter Schey, head of the Center for Humane Rights and Constitutional Law, both previously agreed to defend the county should the matter end up in court. Additionally, attorneys with Earthjustice and the Center for Food Safety have vowed to represent community groups.


On Friday, Schey said he hadn’t had a chance to thoroughly read through the county’s proposal, but that his preliminary understanding of it raised questions and concerns. Those concerns include the county’s expectation that the pro-bono lawyers would finance the out-of-pocket costs of litigation, he said.

“To expect pro-bono counsel to not only dedicate their time but also to dedicate their own funds for basic court costs and deposition costs, I think that might be a bit much,” he said. “I think … if they want pro-bono counsel, they’re going to have to probably be more flexible.”

Tico said she was also reviewing the county’s proposal but declined to comment further.

The plaintiffs in the lawsuit charge that the county violated the United States and Hawaii constitutions, multiple federal and state laws and the Kauai County Charter in passing Bill 2491.  

“Bill 2491 is designed to discriminate against GM seed farming operations on Kauai,” the complaint states. “Bill 2491 was explicitly drafted for the purpose of harming Plaintiffs’ ongoing farming activities.”


The three companies say the ordinance imposes restrictions that are “not rational.”

Although BASF and Kauai Coffee are also affected by the new law, neither joined the lawsuit.


“BASF has not filed a claim at this time and is still reviewing the situation and evaluating our options,” Kirby Kester, BASF’s applied genetics manager, wrote in an email. “BASF complies with all regulations enforced by the United States Environmental Protection Agency (EPA) and the state of Hawaii.”


Each year, the county issues a solicitation of firms who wish to be considered for special counsel services during the fiscal year, according to county spokeswoman Beth Tokioka. The solicitation must be issued in June of any given year, and the firms who respond and are deemed qualified are developed for consideration for the period of July 1-June 30 of the following year.


“In the case of Ordinance 960, the issue of pro-bono special counsel services is clearly beyond the norm in terms of procurement,” Tokioka wrote in an email. “During the course of the debate and deliberations with regard to act 2491, representations were made by certain law firms that defense services would be provided to the county pro-bono, in the event that the county was sued. Although we already have an established list of attorneys to be considered for special counsel services for the current fiscal year, a new procurement for the same services can be pursued if the department head conveys to the procurement officer that new or unmet needs have arisen that mandate a new procurement.”


Anticipating special counsel might be needed in the wake of Ordinance 960, Tokioka said the county determined that the potential for pro-bono legal services met the requirements of a “new” condition, allowing for a subsequent competitive procurement to pursue such services.

“So, for the current pro-bono solicitation, per state procurement law, a selection committee will be convened to review submissions that satisfy the conditions of the solicitation and rank them based on the strength of their qualifications and experiences,” Tokioka wrote. “Then, the Office of the County Attorney will commence negotiations with the top ranked firm.”


Should the county not receive qualified responses for pro-bono counsel, Tokioka said it would revert to its previously solicited list of qualified firms and negotiate fees with the highest-ranked firm out of a selection committee process.


Responses to the county’s solicitation must be received no later than 2 p.m. Thursday, Jan. 30.


For more information or to read the solicitation, visit www.kauai.gov/finance.


• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or [email protected].

thegardenisland.com

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