Friday, April 10, 1998

Big Island
crop damage
paid by DuPont

The payment ends a long court battle
over an agricultural chemical

By Rod Thompson

KAILUA-KONA -- Attorneys for two Big Island farmers have filed papers in Kona Circuit Court saying chemical company DuPont has paid the money it has owed since losing a case to the farmers in 1995.

The filing of the "satisfaction of judgment" in the case of farmers Raymond Kawamata and Stanley Tomono ends a lengthy battle over Benlate, a DuPont product sold to kill fungus but demonstrated during the trial to also kill crops.

Two other Hawaii cases regarding Benlate are still pending against DuPont.

"My clients are happy that it is over," said Stanley Roehrig of Hilo, one of the attorneys for Kawamata and Tomono.

He declined to comment further, saying, "Everything is confidential." Honolulu attorney Bruce Lamon, one of the attorneys for DuPont, also declined to comment.

In January 1995, a Kona jury awarded the farmers $23.8 million for Benlate damage. The "satisfaction of judgment" does not state whether that is the amount finally paid by DuPont.

During the trial, Circuit Judge Ronald Ibarra noted numerous instance of DuPont's failure to provide trial information, which is required by law.

When DuPont unsuccessfully appealed the case to the state Supreme Court, the high court noted that Ibarra issued 54 orders for DuPont to produce information -- 27 of those involving sanctions, and five noting the company intentionally withheld information. Ibarra levied a $1.5 million fine against the company for its actions.

Separately from Kawamata and Tomono, about 220 farmers in Hawaii and Florida sued DuPont in the early 1990s. In 1994, DuPont reached a settlement with them and made payments for damage.

But as information was revealed in the Kawamata case, several Hawaii farmers concluded DuPont had made fraudulent statements to them in offering the settlement.

Honolulu attorney Howard Glickstein filed a federal suit in 1996 on behalf of Warren Kobatake of Waimanalo and Malcolm Saxby of the Big Island alleging fraud and seeking the difference between the settlement amount and what his clients believed they were actually entitled to.

The case was transferred to Georgia, dismissed, and is now on appeal, Glickstein said.

Honolulu attorney Mel Agena also filed a class action suit in state court alleging fraud on behalf of Exotics Hawaii Kona Inc., Chiaki Kato, Harvey Tomono, and all other farmers who used Benlate.

That case was transferred back and forth between state and federal courts several times, said Agena, who is now trying to get it out of federal court and back into state court.

Displaced farmer sues
Koolau landlord

Koolau Agriculture is accused of
cutting off water to Punaluu farms

By Susan Kreifels

Tangle with water rights and powerful landlords in Hawaii and you're in for a long, complicated and expensive battle.

Ask Bo Kjaer-Olsen, who used to be a fish farmer in the Punaluu Valley and is now broke.

Kjaer-Olsen said water to the 12 acres he subleased was cut off in 1994, and $1.5 million worth of fish at his International Aquafarms died.

In 1992 he sued Koolau Agriculture Co., which leases the Bishop Estate land and manages the surface water, after he alleges that the company charged him residential rents not included in his original lease and forced him to sign a separate water agreement.

His lawsuit will finally come to trial at Circuit Court in July.

Kjaer-Olsen estimated 10-12 farmers have been forced to leave the valley over water issues.

"I refused to pay the rent and water because they cut me off and killed all my animals," said Kjaer-Olsen. "This is a very vindictive, very deliberate plan to remove all the farmers out of the valley."

He accused Koolau Agriculture of breaching his lease and shutting off water he once used for free from an irrigation ditch built for sugar plantations.

He also alleged that Koolau Agriculture misrepresented him to lenders and refused to report accurate lease details to the state and Bank of Hawaii.

Circuit Judge Kevin Chang yesterday heard the plaintiff's motion to compel documents and deposition answers from Koolau Agriculture and the company's officers, Valerie Mendes and Fred Trotter.

Koolau Agriculture did not return phone calls yesterday and defense attorneys did not comment.

Kjaer-Olsen stood outside Circuit Court yesterday with a handful of supporters bearing signs that read "Punaluu Needs Water Now" and "Koolau Agriculture are Thiefs."

He was joined by native-Hawaiian rights advocates like Gwen Kim, with the Ohana Koa Nuclear Free Independent Pacific.

"It's a David-and-Goliath thing," said Kim. "I've observed this situation for 10 years and I'm outraged at this company and what they get away with."

Kjaer-Olsen's attorney, San Diego-based John Lawrence Allen, said defendants had not produced documents after numerous letters and calls.

Chang said he intended to appoint a discovery master to move the case.

Water controversies involving Koolau Agriculture in the Punaluu Valley have been ongoing for more than a decade.

In 1989 the state forced it to restore the Punaluu Stream after it changed the stream's course without authority.

Creighton Mattoon, president of the Punaluu Community Association, said the whole watershed needs to be examined.

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