Kauaʻi hui sues Syngenta, DLNR to protect Kekaha crown lands

A Kauaʻi-based community group, Ke Kauhulu o Mana, filed a lawsuit on Tuesday June 13 , 2017 against the State Department of Land and Natural Resources (DLNR) and Syngenta. The suit calls for enforcement of Hawaii Revised Statutes (HRS) Chapter 343, which requires an environmental assessment (EA) or an Environmental Impact Statement (EIS) for any significant actions or development proposed on publicly-owned, coastal and conservation-zoned lands. In this instance, the lands in question are located on Kauaʻi’s west side in Mana adjacent to the coast, about three quarters of a mile from the homes and community of Kekaha, and close to the frequent surfing and recreation beach, Targets.

The hui, Ke Kauhulu O Mana, includes west side residents Loui Cabebe and Punohu Kekaualua III. The plaintiffs include the Surfrider Foundation, Kohola Leo and the Hawai’i Alliance for Progressive Action (HAPA). The plaintiffs are represented by public interest attorney, Lance Collins, who has a wide range of experience with a focus on good government, environmental protection and Native Hawaiian law. Mr. Collins has brought a number of successful cases under HRS 343, most recently Kalepa v. Dept. of Transportation and Maalaea Community Assn v. Dept. of Housing & Human Concerns.

“This suit is being filed to ensure that sensitive, coastal and publicly-owned lands zoned for conservation are given the proper and legally required environmental review prior to being leased out for private commercial use,” said Collins. According to Collins, a thorough review evaluating direct, indirect and cumulative impacts which the law requires, has not been done. The complaint further states that the proposed use of the lands may have significant negative impacts given the anticipated heavy application of Restricted Use Pesticides (RUPs) involved in the industrial farming of crops by Syngenta.

Syngenta has announced plans to sell its Hawaiʻi operations to the Wisconsin-based company, Hartung Brothers. However, media reports also indicate that Hartung Brothers will be contracted by Syngenta to perform the same activities currently conducted by Syngenta employees. Thus the ​environmental and health impacts will remain similar regardless of the named entity conducting day-to-day operations.

State agencies like the Department of Land and Natural Resources (DLNR), must ensure that permittees and leaseholders abide by local regulations and protect public lands.

“These lands are historically Hawaiian crown lands. According to the state constitution, these lands are supposed to be held and protected as part of the public trust,” says Loui Cabebe, a native Hawaiian, long time west side resident and a member of the plaintiff group, Ke Kauhulu o Mana. “The State of Hawaiʻi as the present caretaker of these lands needs to take that responsibility seriously. We are disappointed that, to date, they have failed to do so. We feel compelled to take this legal action to ensure that the regulations designed to preserve and protect crown lands are respected, and that state agencies do their job and enforce those laws.”

The complaint states that the DLNR must require and ensure the execution of a full EIS covering the lands currently being used by Syngenta. Based on what is known of the company’s activities thus far, and because of the close proximity of the parcel in question to the ocean and its conservation designation, Syngenta’s use of the land will likely have significant impacts on the recreational use of the beach and near-shore waters, adjacent reef eco-systems, fishermen, surfers and endangered native species.

In granting Syngenta its permit to utilize the lands, the DLNR has stated the action is exempt from the requirements of HRS 343 as no significant impacts are expected. The complaint alleges this decision was made based on only a superficial review. According to the plaintiffs, that review is woefully inadequate in light of the area’s conservation zoning, its proximity to the coastline and the pesticide-intensive nature of the proposed use by Syngenta. The complaint further points out that exemption to HRS 343 was granted even though the Office of Hawaiian Affairs expressed concerns about possible burials in the area and even though Syngenta’s own federal permits indicate much of the work is done in areas that impact critical habitats of rare and endangered species.

The approximately 60 acre parcel comprises section 5(b) lands, which means they are held in public trust for the people of Hawaiʻi and are subject to native Hawaiian entitlements. The area was previously identified by State agencies as ideal for future park expansion, but is now part of Syngenta’s approximately 3,000 acres of leased, publicly-owned crown lands on Kauaʻi’s west side.

The complaint also argues that a full EIS is needed given the scale and nature of Syngenta’s industrial farming activities, which are distinctly different from the operations of local farmers in several ways. First and foremost, these large scale actions are occurring on state-owned conservation lands situated in a sensitive coastal environment. Secondly, they involve the heavy application of RUPs. Thirdly, night-time activity involving the use of bright lights is known to impact endangered species such as the ‘aʻo (Newell’s Shearwater) and uaʻu (Hawaiian Petrel). The Kauaʻi Endangered Seabird Recovery Project has reported that between 1993 and 2013, populations of the ‘aʻo declined by 94 percent while the uaʻu declined by 78 percent. The federal permits held by Syngenta to grow experimental crops state clearly that the activity is occurring in areas where critical habitats for endangered species exist.

The case will be heard in the environmental court, presided over by the Hon. Randal Valenciano. The complaint has been served on the defendants. They will have 20 days to answer.