2013. August 28. 2:00 p.m. I was working the day watch patrol on the Belt Highway. I observed a green flatbed pickup truck driving towards Hilo with a load of open containers loaded with a green leafy substance. I suspected this could either be cabbage or lettuce. I pursued to investigate. Approximately a half a mile to a mile up the road, I began observing cabbage or lettuce on and to the side of the road. I had passed this location approximately 45 minutes earlier, and there was no such cabbage. I observed no other vehicle with cabbage. I then engaged my siren and lights and commenced a pursuit of the suspect green flatbed pickup truck which I had earlier observed. I apprehended the suspect and issued a citation for violation of Hawaii Revised Statutes § 291-C-131, which prohibits the transportation of a load without preventing any of it -- other than clear water or feathers from live birds -- from exiting the vehicle. My name is Fuiava. I carry a badge.

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HAWSCT: Removal Of Cabbage Trimmings From Highway Would Have Been Unreasonable

by Robert Thomas, InverseCondemnation, May 19, 2016

An ag law detour today, with a bit of Hawaii's history thrown in the mix.

In State v. Bowman, No. SCWC-13-0005863 (May 9, 2016), the unanimous Hawaii Supreme Court threw out the conviction of the farmer, tagged by Officer Fuiava of Five-O for transporting a load of cabbage uncovered. He didn't pick the lost trimmings up, and was cited. (And in case you are wondering, no, the above photo is not of the said Hawaii cabbage farmer, but rather a Cairo cauliflower transporter taken a few years ago. Always been meaning to find a way to use that photo in a post.)

As noted above, when you load stuff in your truck, Hawaii law requires you to cover it. To prevent that stuff from flying out and creating a road hazard, obviously. The statute, however, also contains an exception to the covered load requirement for vehicles carrying agricultural products. Originally enacted in the sugar days, this exception allows uncovered ag loads as long as the transporter provides for the "reasonable removal" of all produce spilled. Covering the trucks which hauled sugar cane from the fields to the mills wasn't really practical. So the sugar growers got their statutory exemption.   

Our Hawaii farmer didn't remove the cabbage, and even though he stopped to consider doing so, he concluded the highway was pretty busy and it wasn't worth the risk of running out into traffic and getting hit. The trial court and the Intermediate Court of Appeals didn't buy his argument that "reasonable removal" didn't cover the situation here, because he didn't try to remove the cabbage, even though the prosecution didn't contest that "running into the highway to remove the cabbage rather than leaving it to decompose was not reasonable, and the prosecution did not show that leaving the cabbage to disintegrate on the highway was not reasonable removal." Slip op. at 8. The issue was whether the farmer provided for reasonable removal of the spilled cabbage. The lower courts concluded that this means that "some kind of removal of spilled produce be performed," but that removal need only be done to the extent reasonable. Slip op. at 19.

The Supreme Court disagreed, and concluded that this was "too narrow," and that the statute requires only that the spilled produce be reasonable to remove. Thus, when the farmer testified without contradiction that it would have been dangerous to "risk 'life and limb' on a busy highway" to pick up cabbage trimmings, he met his burden of proving the statutory exception:

Here, Bowman’s cabbage trimmings are arguably not potential traffic hazards, especially when compared with the sugar cane stalks originally contemplated under this statute. And while it would be reasonable to remove sugar cane stalks from a highway in order to prevent an accident or vehicle damage, it might not be reasonable to remove cabbage trimmings, especially if the attempted removal is on a busy highway and is itself risky for both the person attempting the removal and the motorists driving on the highway.

Slip op. at 21. "For these reasons," the court concluded, "we hold that 'reasonable removal' of spilled produce is only necessary when reasonable." Id.

PDF: State v. Bowman, No. SCWC-13-0005863 (Haw. May 9, 2016)