Stop Cane Burning Enters New Court Battle with HC&S

Plaintiffs Furtado, Edwards, Chun presenting check to attorney Collins. Photo credit: Hokuaoka’ale Gilma

By Wendy Osher

The Maui group Stop Cane Burning has filed a new motion in Second Circuit Court seeking injunctive relief to invalidate the 2015 Burn Permit issued to Hawaiian Commercial & Sugar Company and ban parent company A&B from conducting agricultural burning operations on Maui.

The filing comes on the heels of a separate lawsuit filed against the state Department of Health demanding a stop to cane burning. It later added HC&S as a defendant, and then this last week filed another action, demanding the immediate termination of cane burning pending resolution of their lawsuit.

Cane burning 9/23/13, Kahului side of Baldwin Ave. Photo courtesy Valerie Toro.

The motion, filed on Thursday, July 30, by their attorney Lance D. Collins, seeks a preliminary injunction of the permitting and operations of cane burning, with claims that the activity is “illegal and is causing irreparable harm to the community.”

HC&S general manager Rick Volner responded to our request for comment saying, “We are disappointed by the series of legal maneuvers recently orchestrated by Stop Cane Burning in its single-minded quest to end harvesting techniques that have been carefully regulated and essential to HC&S’ continued operations.”

Cane Burning protest. File photo Sept. 2012 by Wendy Osher.

In a statement, Volner accused the group of distributing “misleading and erroneous information,” in an attempt to support what he called “unfounded claims.”

The 912-page filing alleges that the Hawaiʻi Department of Health, through their issuance of an open burn permit, violated the public trust doctrine by putting the public’s health at risk.

Stop Cane Burning Maui Founder Karen Chun commented in an organization press release saying, “we are all guaranteed the right to clean and healthful environment by the Hawaiʻi Constitution and that includes the right to clean air. HC&S cane burns are a clear violation of Hawaiʻi’s constitution and should have been stopped back in 1971 when we already had proof of lung damage. How is it that 44 years have gone by and HC&S is still allowed to make our kids sick,” Chun asked.

Chun continued calling cane burning an “anti-jobs practice that also substantially puts the public’s health at risk.”  The court filing asserts that sugar companies in other countries such as Australia, have switched to green harvesting techniques without cutting into profits.

“If those people complain about burning cane–if they can support 800 workers–then they have a right to speak; but my point is who are they to say how to run the lifestyle of the island,” said Charles Jennings, HC&S retiree (front left) during a demonstration backing HC&S’s lifestyle and jobs in Sept. 2012. File photo by Wendy Osher.

Volner responded to the suggestion that HC&S to harvest in other ways saying, “The problem is this: if their demand for an immediate ban on cane burning is granted, they will get their way by default–their action will trigger the closure of HC&S. We cannot continue to farm knowing we cannot burn to harvest the crop for some unknown period of time, while their lawsuit is being pursued.”

He continued saying, “At risk are the 36,000 acres of sugar cane farmland that provide open space and vistas that our visitors and all of us enjoy. What becomes of our 750 employees and their families and the thousands of residents whose jobs also depend on HC&S, if they suddenly have no income to put dinner on the table or to pay their mortgages?”

The Stop Cane Burning group reports that it has raised over $25,000 for legal fees in less than a month through a GoFundMe account. “This shows that the community is concerned about their health and the health of their keiki (children) and ʻohana (family). They’re willing to kākoʻo (support) this effort with financial contributions to aloha ʻāina,” said plaintiff Trinette Furtado.

Fellow plaintiff Brad Edwards said, “Burning cane is an environmentally destructive practice.” He claims A&B managment is putting the health of residents and the environment at risk for their own financial gain.

“The highly publicized HC&S burn on May 27, 2015 where elementary school children in Kīhei were seen holding their shirts over their mouths struggling to breath showed just how dangerous and reckless this practice is,” said Edwards.

HC&S sugar cane fields in Kahului. Photo by Wendy Osher.

Volner said the company has been taking action to ensure impacts to the community are addressed.  He said, “We want to be a good neighbor and have worked actively with DOH to adhere to a complex set of burn procedures, which we implement field by field, to minimize the impact to our community. We have invested millions of dollars exploring different harvesting techniques and alternative crops, none of which have yet proven to be viable for 36,000 acres.”

Plaintiff Furtado maintains that the sugar cane industry is not ‘a Hawaiian institution’ and, “it was not kānaka who industrialized it,” she said.  “HC&S has had many opportunities to make positive changes but has failed time and time again to take the issue seriously and to start protecting our health and the health of our keiki,” said Furtado.

Volner said the ability to continue cane burning, “remains a critical factor in the survival of our company.”  He continued saying,  “We continue to look for new crops, evaluate other sugar by-products and biofuel options and research cutting edge renewable energy technologies.”

A hearing has been tentatively set for Sept. 16, 2015 in Second Circuit Court before Judge Cardoza.

Volner responded to the filing saying, “We intend to fight this request for an injunction, which we believe is an attack on the farming community, local residents and businesses and our very existence as a company.”

The plaintiffs are Stop Cane Burning, Trinette Furtado, Brad Edwards and Karen Chun.  Both the Director of the Department of Health and Alexander & Baldwin, LLC are named as defendants in the filing.