United States: Federal District Court Doubles Down, Vacates Hawaii County GMO Ban

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.