Hawai'i Papaya Industry Assn. v. County of Hawaii ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAWAI’I PAPAYA INDUSTRY No. 14-17538
ASSOCIATION; BIG ISLAND BANANA
GROWERS ASSOCIATION; HAWAI’I D.C. No. 1:14-cv-00267-BMK
CATTLEMEN’S COUNCIL, INC.;
PACIFIC FLORAL EXCHANGE, INC.;
BIOTECHNOLOGY INNOVATION MEMORANDUM**
ORGANIZATION;* RICHARD HA;
JASON MONIZ; GORDON INOUYE;
ERIC TANOUYE; HAWAI’I
FLORICULTURE AND NURSERY
ASSOCIATION,
Plaintiffs-Appellees,
v.
COUNTY OF HAWAII,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding
Argued and Submitted June 15, 2016
Honolulu, Hawaii
*
Appellee’s unopposed motion to amend the caption is granted.
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: THOMAS, Chief Judge, and CALLAHAN and MURGUIA, Circuit
Judges.
In this action, Plaintiffs-Appellees (collectively, the GE Parties) challenge
Hawaii County Ordinance 13-121, which regulates genetically engineered (GE)
plants. The district court granted summary judgment in Plaintiffs’ favor, holding
that Ordinance 13-121 is impliedly preempted under state law and expressly
preempted, in part, by federal law. Defendant-Appellant County of Hawaii
appealed. We affirm.1
I.
Our concurrently filed opinion in Atay v. County of Maui, Nos. 15-16466,
15-16552, sets forth in greater detail the legal basis that controls this decision.
Atay involves substantially similar facts in relevant part.
The County of Hawaii’s (County) Ordinance bans “open air testing of
genetically engineered organisms of any kind” and “open air cultivation,
propagation, development, or testing of genetically engineered crops or plants.”
Haw. Cty. Code (HCC) §§ 14-130, 14-131. The purposes of the Ordinance are to
1
We also reject Appellant’s argument that we should certify the state
law issues presented to the Hawaii Supreme Court. As explained in our
concurrently filed opinion in Syngenta Seeds, Inc. v. County of Kauai, Nos.
14-16833, 14-16848, certification is not merited because the implied state
preemption analysis under Hawaii law is well-defined.
2
prevent cross-pollination from GE plants to non-GE plants and to preserve Hawaii
Island’s vulnerable ecosystem “while promoting the cultural heritage of indigenous
agricultural practices.” HCC § 14-128.
The GE Parties challenge the Ordinance on two grounds: (1) the Ordinance
is expressly preempted by the Plant Protection Act (PPA), 7 U.S.C. § 7756(b), in
its application to plants that the U.S. Animal and Plant Health Inspection Service
(APHIS) regulates as plant pests2; and (2) the Ordinance is fully preempted under
state law. For the reasons more fully set forth in Atay, we agree.
A. The Ordinance is expressly preempted by federal law.
Under the PPA, “no State or 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 control . . . , eradicate . . ., or prevent the introduction or
dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a
regulation or order to prevent the dissemination of the . . . plant pest, or noxious
2
The district court rejected Appellees’ argument that the Ordinance is
preempted on federal implied preemption grounds. Appellees have waived that
argument by not raising it as an alternative ground for affirmance in their
answering brief on appeal. We therefore decline to reach the issue. See United
States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en banc).
3
weed within the United States.” 7 U.S.C. § 7756(b)(1). The Ordinance is
therefore expressly preempted if three conditions are met: (1) the local law must
regulate “movement in interstate commerce,” (2) it must be intended to “control . .
. , eradicate . . . , or prevent the introduction or dissemination of a . . . plant pest, or
noxious weed,” and (3) APHIS must regulate the plant at issue as a plant pest or
noxious weed. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)
(Congress’ intent to preempt state and local law may be “explicitly stated in the
statute’s language or implicitly contained in its structure and purpose”) (internal
quotation marks omitted). Each condition is met here.
For the same reasons set forth in Atay, the County of Hawaii’s Ordinance
satisfies all three conditions for express preemption. First, the Ordinance regulates
“movement in interstate commerce” because it regulates the dissemination of
plants and seeds from fields, which implicates interstate commerce. See 7 U.S.C. §
7711(a). Second, the Ordinance was passed in order to “control . . . , eradicate . . . ,
or prevent the introduction or dissemination of a . . . plant pest, or noxious weed.”
Id. § 7756(b)(1). An express purpose of the Ordinance is to prevent the spread of
GE plants, and it implements this charge by banning most planting and testing of
GE plants. HCC §§ 14-128, 14-130, 14-131. Third, APHIS has issued regulations
4
in order to prevent the dissemination of the class of plant pests at issue, GE crops.
See 7 C.F.R. Part 340.
We conclude that the Ordinance is expressly preempted by the PPA to the
extent that it seeks to ban GE plants that APHIS regulates as plant pests.
B. The Ordinance is impliedly preempted by state law.
We have held that federal law preempts the Ordinance in its application to
GE plants that APHIS regulates as plant pests, but not in its application to federally
deregulated, commercialized GE plants. However, we find that Hawaii state law
impliedly preempts the Ordinance in its remaining application to commercialized
GE plants.3
As explained in Atay and Syngenta Seeds, Inc. v. County of Kauai, Nos.
14-16833, 14-16848, Hawaii courts apply a “‘comprehensive statutory scheme’
test” to decide field-preemption claims under HRS § 46-1.5(13), such as that made
by the GE Parties here. Under this test, a local law is preempted if “it covers the
same subject matter embraced within a comprehensive state statutory scheme
disclosing an express or implied intent to be exclusive and uniform throughout the
3
We agree with the district court in Syngenta Seeds, Inc. v. County of
Kauai, that the scope of federal preemption delineates the breadth of state field
preemption in this case. No. Civ. 14-00014 BMK, 2014 WL 4216022, at *9 n.11
(D. Haw. Aug. 25, 2014).
5
state.” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1209 (Haw. 1994).
Courts frequently treat this test as involving several overlapping elements,
including showings that (1) the state and local laws address the same subject
matter; (2) the state law comprehensively regulates that subject matter; and (3) the
legislature intended the state law to be uniform and exclusive. However, as is true
of our federal preemption analysis, the “critical determination to be made” is
“whether the statutory scheme at issue indicate[s] a legislative intention to be the
exclusive legislation applicable to the relevant subject matter.” Pac. Int’l Servs.
Corp. v. Hurip, 873 P.2d 88, 94 (Haw. 1994) (internal quotation marks omitted).
As explained in Atay, Hawaii has established a comprehensive, uniform, and
exclusive statutory scheme to address the threat posed by introduced, potentially
harmful plants, and has delegated authority to the Hawaii Department of
Agriculture (DOA) to enact rules to that end. By banning commercialized GE
plants, the Ordinance impermissibly intrudes into this area of exclusive State
6
regulation and thus is beyond the County’s authority under HRS § 46-1.5(13) and
preempted.4 See Atay, Nos. 15-16466, 15-16552.
II.
We hold that the County’s Ordinance banning the cultivation and testing of
GE plants is preempted by the Plant Protection Act’s express preemption clause in
its application to GE plants regulated by APHIS as plant pests. We further hold
that the Ordinance is impliedly preempted by Hawaii law in its application to
federally deregulated, commercialized GE plants.
The district court’s summary judgment in favor of the GE Parties is
AFFIRMED.
4
For the reasons set forth in our concurrently filed opinion in Syngenta,
we also reject Appellant’s argument that the Hawaii Constitution’s conservation
clause, Article XI, § 1, alters the preemption analysis where local laws aimed at
conserving and protecting the environment are at issue. Counties lack inherent
authority under the Hawaii Constitution. Haw. Gov’t Employees’ Ass’n v. Maui,
576 P.2d 1029, 1038 (Haw. 1978); In re Application of Anamizu, 481 P.2d 116,
118 (Haw. 1971). Accordingly, counties have no power to conserve the public
trust unless the State has delegated to them the authority to do so. Because Hawaii
law under HRS § 46-1.5(13) does not permit counties to enact ordinances that
conflict with state law or intrude upon areas expressly or impliedly reserved for
state regulation, the determinative question is whether the Ordinance is impliedly
preempted by state law.
7