Federal District Court Doubles Down, Vacates Hawaii County GMO Ban

by BakerHostetler

On November 26, Magistrate Judge Barry Kurren struck down Hawaii County’s Ordinance 13-121, which restricts the open-air growth and cultivation of genetically engineered crops or plants (GMOs). See Slip Op. at 28. In this opinion, Magistrate Judge Kurren found that Hawaii County’s ordinance was preempted in part by the federal Plant Protection Act (“PPA”) 7 U.S.C. §§ 7701 et seq., in addition to finding the ordinance completely preempted by state law. This decision is the second by Magistrate Judge Kurren regarding a county’s ability to regulate GMO cultivation. On August 25 of this year, he vacated Kauai County’s Ordinance 960. What sets this opinion apart from the previous one, however, is the finding that the PPA expressly preempts local laws banning the growth of genetically engineered plants. This interpretation of federal law will likely serve as a harbinger of future cases outside Hawaii.

The Hawaii County ordinance, codified as Hawaii County Code §§ 14-128 et seq., generally prohibited the open-air cultivation, propagation, development, or testing of genetically modified plants. In June 2014, a group of plaintiffs filed suit against the law, setting forth four separate claims. See Hawaii Floriculture & Nursery Ass’n v. Cnty. of Hawaii, No. 14-cv-00267 (D. Haw.). The plaintiffs recently filed a motion for summary judgment on two of them: that the ordinance was preempted by (1) federal law and (2) state law.

The most impactful part of the court’s opinion is its federal preemption decision, where the court held that the express preemption clause in the PPA applied. Slip Op. at 17. This clause states

no… political subdivision of a State may regulate the movement in interstate commerce of any… plant,… plant  pest, noxious weed, or plant product in order to… prevent the introduction or dissemination of a… plant pest, or noxious weed, if the Secretary has issued a regulation… to prevent the dissemination of the… plant pest, or noxious weed within the United States.

Id. at 19 [citing 7 U.S.C. § 7756(b)(1)]. To determine whether the clause preempted the ordinance, the court analyzed the plain language of the statute in accordance with the two separate phrases.

Under the first phrase, the court found that Ordinance 13-121 regulated “movement” because this term is broadly defined as the “release into the environment,” unquestionably governing the open-air cultivation of genetically engineered plants. Id. at 20. The court determined the ordinance involved interstate commerce because Congress expressly found that all regulated articles under the PPA are in or affect interstate commerce. Id. [citing 7 U.S.C. §§ 7701(9), 7702(9)(E)]. Id. The court also found that the purpose of Ordinance 13-121, to “prevent the transfer and uncontrolled spread of genetically engineered organisms that threaten to cross pollinate with and contaminate non-genetically engineered plants,” is the same as the PPA’s purpose of “prevent[ing] the introduction or dissemination of a... plant pest, or noxious weed.” Id. at 20.

Under the second phrase, the court concluded that the U.S. Department of Agriculture issued regulations to prevent the dissemination of plant pests or noxious weeds. Specifically, 7 C.F.R. Part 340 restricts the “introduction of regulated articles,” which are termed “presumptive plant pests” and include genetically engineered plants that meet the definition of plant pest as well as other plant pests and noxious weeds. Id. at 21 (citing 7 C.F.R. § 340.1). Thus, the court concluded “to the extent that a regulated article under Part 340 is a plant pest or noxious weed, the Secretary has issued a regulation preventing the dissemination of that plant pest or noxious weed.” Id.

Based on this plain language reading of 7 U.S.C. § 7756(b)(1), the court found that the PPA expressly preempted portions of Ordinance 13-121. The court’s holding was not absolute but instead was limited to the extent that Ordinance 13-121 “bans field testing of genetically engineered plants that are ‘plant pests’ or ‘noxious weeds’ and are regulated under Part 340.” Id. at 22. Thus, the PPA does not preempt the ordinance to the extent it bans field testing of plants that are not plant pests or noxious weeds regulated under Part 340.

Though the court declined to find that the PPA expressly preempted all of Ordinance 13-121 (or that the Coordinated Framework for Regulation of Biotechnology impliedly preempted the ordinance), the court enjoined enforcement of the entire ordinance based on its finding that state law displaced the County’s ability to regulate the cultivation of genetically engineered plants. The issue of state law preemption was very similar to the issues presented in Syngenta Seeds, Inc. v. County of Kauai, No. 14-00014 (D. Haw. Aug. 23, 2014). In both cases the plaintiffs claimed that the Hawaii Constitution grants the state exclusive authority over agriculture and that the Hawaii Department of Agriculture (“HDOA”) established a comprehensive framework for regulating plants, leaving no room for a county to legislate. The court agreed with plaintiffs just as it did in the Syngenta Seeds litigation finding that “Hawaii state law impliedly preempts and invalidates Ordinance 13-121.” Slip Op. at 10.

The court’s decision will undoubtedly influence its future ruling in the pending lawsuit against Maui County challenging the moratorium on GMO cultivation, likely leading to a ruling enjoining that law as well. Additionally, the court’s finding that the PPA expressly preempts state or local laws banning the cultivation of genetically engineered plants that are concurrently regulated under 7 C.F.R. Part 340 should be influential in any future suit targeting similar laws in California or Oregon counties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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