On November 18, 2016, the Ninth Circuit issued five rulings
rejecting three Hawaii counties' attempts to regulate
pesticides and genetically modified crops, finding that the
regulations were preempted by state and federal laws.
Alika Atay et al. v. County of Maui et. al.
In Atay, citizens of Maui County had voted into law an
ordinance that banned the planting and testing of genetically
engineered ("GE") plants. Maui citizens were concerned
about the effects of GE crops and pesticides, particularly in Maui,
which "had become an attractive location for field tests"
of genetically engineered crops and pesticides. After the ordinance
passed, a group of proponents of the ordinance filed suit, seeking
declaratory relief to resolve the ordinance's legality. At the
same time, opponents of the ordinance filed suit against Maui
County to invalidate the ordinance. After removal to federal court,
the district court later granted the opponents' motion for
The Ninth Circuit affirmed the district court's order on
summary judgment. While the citizen groups had standing to bring
the claim, the ordinance was expressly preempted by federal and
Relying on Hollingsworth v. Perry, 133 S. Ct. 2652
(2013), opponents of the ordinance argued that proponents lacked
standing to defend the constitutionality of the ordinance because
the relevant public officials had chosen not to. The Ninth Circuit
disagreed, finding that proponents could establish standing if they
could do so independently of their status as ballot initiative
proponents. Unlike in Hollingsworth, appellants
established an interest of their own: GE farming operations would
threaten economic harm to their organic, non-GE farms. Opponents
had therefore established Article III standing.
The Ninth Circuit held that the ordinance was expressly
preempted by the Plant Protection Act ("PPA"), to the
extent the ordinance bans genetically engineered plants that the
U.S. Animal and Plant Health Inspection Service ("APHIS")
regulates as plant pests. As the court explained, the PPA includes
an express preemption provision forbidding a state or local agency
from regulating the movement in interstate commerce of a plant, if
the regulation is intended to control or eradicate that plant, and
if the APHIS has regulated the specific plant. All conditions were
The Ninth Circuit also held that, while the ban was not
impliedly preempted by the PPA in its application to crops that
APHIS had deregulated, it was impliedly preempted to these
crops by Hawaii's state statutory scheme for the regulation of
potentially harmful plants. This was because the ordinance
addressed the same subject as Hawaii law—the regulation of
potentially harmful plants and invasive species. Moreover, the
state's statutory scheme made clear that the legislature
intended for the State's regulation of potentially harmful
plants to be exclusive of supplemental local regulations. As such,
the ordinance was preempted by Hawaii state law.
Other Hawaii Cases
The Ninth Circuit also blocked similar attempts to regulate
pesticides in Kauai, County and Hawaii County in Syngenta Seeds
Inc. et al. v. County of Kauai et al., No. 14-16833, and
Hawai'i Papaya Industry Assn. et al. v. County of
Hawaii, No. 14-17538.
In Syngenta, the Ninth Circuit shut down Kauai
County's attempt to regulate pesticides and GE plants, applying
the Hawaii Supreme Court's "comprehensive statutory
scheme" test to find that the ordinance was preempted by state
law. In Hawaii Papaya Industry, the court found that the
ordinances were expressly preempted by federal law for the same
reasons set forth in Atay. The ordinances were also
impliedly preempted by state law for the same reasons set forth in
Atay and Syngenta.
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
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