Alika Atay v. County of Maui , 842 F.3d 688 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALIKA ATAY; LORRIN PANG; MARK No. 15-16466
SHEEHAN; BONNIE MARSH; LEI’OHU
RYDER; SHAKA MOVEMENT, D.C. No.
(Sustainable Hawaiian Agriculture 1:14-cv-00582-
for the Keiki and the ‘Aina) SOM-BMK
Movement,
Plaintiffs-Appellants,
v.
COUNTY OF MAUI; MONSANTO
COMPANY; ROBERT ITO FARM, INC.;
HAWAII FARM BUREAU FEDERATION,
MAUI COUNTY; MOLOKAI CHAMBER
OF COMMERCE; AGRIGENETICS, INC.;
CONCERNED CITIZENS OF MOLOKAI
AND MAUI; FRIENDLY ISLE AUTO
PARTS & SUPPLIES, INC.; NEW
HORIZON ENTERPRISES, INC., DBA
Makoa Trucking and Services;
HIKIOLA COOPERATIVE; DOW
AGROSCIENCES LLC; JOHN DOES
1–10; JANE DOES 1–10; DOE
PARTNERSHIPS 1–10; DOE
CORPORATIONS 1–10; DOE
GOVERNMENT ENTITIES 1–10,
Defendants-Appellees.
2 ATAY V. COUNTY OF MAUI
ROBERT ITO FARM, INC.; HAWAII No. 15-16552
FARM BUREAU FEDERATION, MAUI
COUNTY, “Maui Farm Bureau”; D.C. No.
MOLOKAI CHAMBER OF COMMERCE; 1:14-cv-00511-
AGRIGENETICS, INC., DBA Mycogen SOM-BMK
Seeds; MONSANTO COMPANY;
CONCERNED CITIZENS OF MOLOKAI
AND MAUI; FRIENDLY ISLE AUTO OPINION
PARTS & SUPPLIES, INC.; NEW
HORIZON ENTERPRISES, INC., DBA
Makoa Trucking and Services;
HIKIOLA COOPERATIVE,
Plaintiffs-Appellees,
v.
COUNTY OF MAUI,
Defendant-Appellee,
ALIKA ATAY; LORRIN PANG; MARK
SHEEHAN; BONNIE MARSH; LEI’OHU
RYDER; SHAKA MOVEMENT,
Intervenor-Defendants-Appellants.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief Judge, Presiding
Argued and Submitted June 15, 2016
Honolulu, Hawaii
Filed November 18, 2016
ATAY V. COUNTY OF MAUI 3
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
Opinion by Judge Callahan
SUMMARY*
Preemption
The panel affirmed the district court’s summary judgment
and its dismissal in two related actions pertaining to an
ordinance voted into law by Maui citizens which banned the
cultivation and testing of genetically engineered plants.
The panel first held that the proponents of the Maui ballot
initiative and other appellants had established Article III
standing based on the allegations of five individual residents
who alleged that genetically engineered farming operations
threatened economic harm to their farms. The panel further
held that the district court did not err by denying the
proponents’ motion to remand their action to state court and
did not err by denying the proponents’ request for Rule 56(d)
discovery.
The panel held that the Maui ordinance is expressly
preempted by the Plant Protection Act, 7 U.S.C. § 7756(b), to
the extent that it bans genetically engineered plants that the
U.S. Animal and Plant Health Inspection Service regulates as
plant pests. The panel held that the ban is not impliedly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ATAY V. COUNTY OF MAUI
preempted by the Plant Protection Act in its application to
genetically engineered crops that the Animal and Plant Health
Inspection Service has deregulated, but is impliedly
preempted in this application by Hawaii’s comprehensive
state statutory scheme for the regulation of potentially
harmful plants.
COUNSEL
A. Bernard Bays (argued), Leinaala L. Ley, Michael C.
Carroll, and Karin L. Holma, Bays Lung Rose & Holma,
Honolulu, Hawaii, for Appellants.
Richard P. Bress (argued), Matthew J. Glover, Jonathan Y.
Ellis, Andrew D. Prins, and Philip J. Perry, Latham &
Watkins LLP, Washington, D.C.; Margery S. Bronster
(argued) and Rex Y. Fujichaku, Bronster Fujichaku Robbins,
Honolulu, Hawaii; Christopher Landau, Kirkland & Ellis
LLP, Washington, D.C.; Nickolas A. Kacprowski and Paul D.
Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii; for
Appellees.
Sylvia Shih-Yau Wu and George A. Kimbrell, Center for
Food Safety, San Francisco, California; Summer Kupau-Odo
and Paul H. Achitoff, Earthjustice, Honolulu, Hawaii; for
Amici Curiae Center for Food Safety, Moms on a Mission
(MOM) Hui, Moloka‘I Mahi‘ai, and Gerry Ross.
Stanley H. Abramson, Karen Ellis Carr, and Kathleen R.
Heilman, Arent Fox LLP, Washington, D.C., for Amicus
Curiae Biotechnology Innovation Organization.
ATAY V. COUNTY OF MAUI 5
OPINION
CALLAHAN, Circuit Judge:
The citizens of Maui County voted into law an ordinance
banning the cultivation and testing of genetically engineered
(GE) plants. We must decide whether the ban is preempted
by federal and state law, as the district court held below. We
hold that the ordinance is expressly preempted by the Plant
Protection Act, 7 U.S.C. § 7756(b), to the extent that it bans
GE plants that the U.S. Animal and Plant Health Inspection
Service (APHIS) regulates as plant pests. We hold that the
ban is not impliedly preempted by the Plant Protection Act in
its application to GE crops that APHIS has deregulated, but
is impliedly preempted in this application by Hawaii’s
comprehensive state statutory scheme for the regulation of
potentially harmful plants. We therefore affirm.
I.
A. Background regarding GE crops and their cultivation
on Maui
Appellees include farmers and other agricultural workers,
a farmer’s cooperative, local businesses, Maui citizens, and
several companies—including Monsanto Company and
Agrigenetics, Inc.—that supply seed for GE plants.
Monsanto and Agrigenetics own or lease thousands of acres
of farmland in Maui County, where they farm GE seed to be
used by farmers around the world and conduct field tests of
GE plants regulated by APHIS, which is an agency in the
U.S. Department of Agriculture. Hawaii’s temperate climate
and year-round growing season provide excellent conditions
for farming and testing GE seeds and crops, which
6 ATAY V. COUNTY OF MAUI
Appellants—citizens and an organization concerned about the
effects of GE crops and pesticides—say have made Maui
“‘ground zero’ for the testing and development of GE crops.”
See Biotechnology Regulatory Services, APHIS, USDA
Regulation of Biotechnology Field Tests in Hawaii,
1 (Feb. 2006), http://www.co.maui.hi.us/DocumentCenter/
View/94680 (explaining that “[b]ecause of Hawaii’s tropical
climate . . . the State has become an attractive location for
field tests of a variety of biotech crops”).
GE crops are genetically modified to enhance desirable
traits, including resistance to diseases, pests, and pesticides,
nutritional value, shelf life, and the production of high yields
in a variety of environmental conditions. Some GE plants are
genetically modified to produce useful goods such as biofuel
or pharmaceuticals. See Ctr. For Food Safety v. Johanns,
451 F. Supp. 2d 1165, 1170, 1183, 1186 (D. Haw. 2006). GE
crops play a major role in the world’s food supply. For
example, the U.S. Department of Agriculture reports that over
90% of all corn, soybean, and cotton grown in the United
States are now GE varieties.1 In Hawaii, a GE variety of
papaya that is resistant to aphid-transmitted ringspot virus is
credited with saving the State’s papaya industry.2
1
See Economic Research Service, USDA, Adoption of Genetically
Engineered Crops in the U.S., 1996–2016, http://www.ers.usda.gov/data-
products/adoption-of-genetically-engineered-crops-in-the-us.aspx. (follow
link to “Genetically engineered varieties of corn, upland cotton, and
soybeans, by State and for the United States, 2000–16”).
2
See, e.g., Tom Callis, Papaya: A GMO Success Story, Hawaii
Tribune Herald, June 10, 2013, http://hawaiitribune-herald.com/sections/
news/local-news/papaya-gmo-success-story.html.
ATAY V. COUNTY OF MAUI 7
Scientific studies have not shown that food produced from
GE crops poses any inherent risk to human health. See, e.g.,
66 Fed. Reg. 4839, 4840 (Jan. 18, 2001) (“We have
concluded that the use, or absence of use, of bioengineering
in the production of a food is not a fact that is material either
with respect to consequences resulting from the use of the
food.”). However, the cultivation and testing of GE plants
raise several well-documented concerns. For example,
“[b]iological contamination [of conventional crops and wild
plants] can occur through pollination of non-[GE] plants by
[GE] plants or by the mixing of [GE] seed with natural, or
non-[GE] seed.” Geertson Seed Farms v. Johanns, No. C 06-
01075 CRB, 2007 WL 518624, at *4 (N.D. Cal. Feb. 13,
2007) (discussing “[g]ene transmission to non-[GE] alfalfa”).
This unintended gene flow is frequently referred to as
“transgenic contamination.” Ctr. for Food Safety v. Vilsack,
718 F.3d 829, 832, 841 (9th Cir. 2013).
“[I]njury [from transgenic contamination] has an
environmental as well as an economic component.”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 155
(2010). Transgenic contamination has previously caused
significant economic impacts on farmers of conventional,
non-GE crops. For example, “[i]n August of 2006, it was
revealed that the United States long-grain rice supply was
contaminated with [GE rice], and the price of rice dropped
dramatically.” In re Genetically Modified Rice Litigation,
No. 4:06 MD 1811 CDP, 2007 WL 3027580, *1 (E.D. Mo.
Oct. 15, 2007). “The market for American rice suffered
significantly, in part because of the European aversion to any
genetically modified foods.” Id.; see also Vilsack, 718 F.3d
at 832, 841 (explaining economic concerns raised by GE
alfalfa).
8 ATAY V. COUNTY OF MAUI
The cultivation of GE crops also may raise environmental
concerns, such as harm to beneficial plants and animals
caused by the increased use of pesticides sometimes
associated with testing and growing GE crops, the
proliferation of “superweeds” and other pests resistant to
pesticides, and the reduction of biodiversity. See, e.g.,
Vilsack, 718 F.3d at 841 (explaining concerns with pesticide-
resistant weeds and the increased use of pesticides associated
with GE alfalfa). For example, the escape of herbicide-
resistant GE plants from test fields or the contamination of
wild plants with genes providing for herbicide resistance may
have detrimental environmental impacts as these plants out-
compete other plants, as reportedly occurred in the case of
genetically modified creeping bentgrass.3 “Biological
contamination” might also raise human health concerns
where, for example, GE seeds for pharmaceutical crops
escape field trials and grow amid commercial crops headed
to the market, as reportedly occurred in the case of GE corn
designed to produce a protein to be used in pig vaccine. See
GAO Report, supra n.3, at 91–92.
B. Maui County’s ban on the cultivation of GE plants
Concerned with the risks presented by the testing and
cultivation of GE plants, on November 4, 2014, the voters of
Maui County passed a ballot initiative enacting “A Bill
3
See USDA, News Release No. 0350.07, USDA Concludes
Genetically Engineered Creeping Bentgrass Investigation
(Nov. 26, 2007), http://www.usda.gov/wps/portal/usda/usdahome?conte
ntidonly=true&contentid=2007/11/0350.xml; U.S. Gov’t Accountability
Office, GAO-09-60, Genetically Engineered Crops: Agencies are
Proposing Changes to Improve Oversight, but Could Take Additional
Steps to Enhance Coordination and Monitoring 20–21 (2008),
http://www.gao.gov/products/GAO-09-60.
ATAY V. COUNTY OF MAUI 9
Placing a Moratorium on the Cultivation of Genetically
Engineered Organisms” (the Ordinance). Maui’s effort to
regulate GE crops is not unique. Hawaii County and Kauai
County also have passed ordinances regulating GE crops,
which are the subjects of two other legal challenges pending
before our court. Amici the Center for Food Safety, et al.
report that more than 130 statutes, regulations, and ordinances
governing GE crops have been passed nationwide.
The stated purposes of Maui’s Ordinance are to protect
organic and non-GE farmers and the County’s environment
from transgenic contamination and pesticides, preserve the
right of Maui County residents to reject GE agriculture, and
protect the County’s vulnerable ecosystems and indigenous
cultural heritage. Ordinance § 4.
The Ordinance enacts a “Temporary Moratorium” making
it “unlawful for any person or entity to knowingly propagate,
cultivate, raise, grow or test Genetically Engineered
Organisms within the County of Maui until” the Ordinance is
amended or repealed. Id. § 5(1). On its face, as the parties
agree, the Ordinance applies not only to the commercial
agricultural operations like Monsanto and Agrigenetics, but
also to individuals who have GMO plants in their backyards,
such as a ringspot-virus-resistant GE papaya tree. The
Ordinance provides exceptions only for “GE Organisms that
are in mid-growth cycle,” products prepared for sale that
contain GE organisms, licensed health practitioners, and
certain academic research. Id. § 5(2).
The “Temporary Moratorium” imposed by the Ordinance
is more accurately characterized as a ban on the cultivation
and testing of GE crops, as it will continue in effect absent
amendment or repeal. The ban may be amended or repealed
10 ATAY V. COUNTY OF MAUI
only if an Environmental and Public Health Impacts Study is
completed, a public hearing held, and two-thirds of the
County Council approve the amendment or repeal. Id. § 6.
Additionally, the County Council must find that the
amendment or repeal will significantly benefit the County
while causing no significant harm. Id. § 6.
The Ordinance imposes civil penalties of $10,000 for a
first violation, $25,000 for a second violation, and $50,000
for additional violations. Id. § 9(2). Each day an individual
violates the Ordinance is considered a separate violation. Id.
The Ordinance creates criminal liability as well, with
violations punishable by a $2,000 fine, imprisonment for no
longer than one year, or both for each offense. Id. § 9(3).
The Ordinance also authorizes the County’s Director of
Environmental Management to enter property to remove GE
organisms at the violator’s expense. Id. § 9(4). There is also
a citizen suit provision that allows private suits to enjoin
violations of the Ordinance. Id. § 9(5). Finally, the
Ordinance contains a severability clause. Id. § 10.
C. Procedural history
On November 12, 2014, eight days after voters passed the
initiative, a group of proponents of the ballot initiative
including the Sustainable Hawai``ian Agriculture for the Keiki
and the ``Aina Movement (collectively SHAKA) filed suit in
Hawaii state court, seeking declaratory relief to resolve the
Ordinance’s legality (the Atay action).
The following day, opponents of the initiative including
Appellees (collectively, the GE Parties) filed suit against
Maui County in federal district court, seeking to invalidate
the Ordinance (the Robert Ito Farm action). On November
ATAY V. COUNTY OF MAUI 11
17, 2014, following an agreement between the GE Parties and
the County, the magistrate judge enjoined the County from
“publishing or certifying the Ordinance, enacting, effecting,
implementing, executing, applying, enforcing, or otherwise
acting upon the Ordinance” until the court could determine its
legality. SHAKA moved to intervene, and the district court
granted the motion on December 15, 2014, noting that Maui’s
mayor and the County Council had publicly opposed the
Ordinance prior to its passage.4
On December 30, 2014, the GE Parties removed the Atay
action to federal court, where it was assigned to Chief Judge
Mollway, the same judge assigned the Robert Ito Farm
action. SHAKA filed a motion to remand back to state court,
which the district court denied.
On June 30, 2015, the district court granted the GE
Parties’ motion for summary judgment filed in the Robert Ito
Farm action and granted the County’s motion to dismiss filed
in the Atay action. Robert Ito Farm, Inc. v. Cty. of Maui,
111 F. Supp. 3d 1088 (D. Haw. 2015). The district court
found the Ordinance unenforceable because it was expressly
and impliedly preempted by federal law, impliedly preempted
by state law, and in excess of the County’s authority under
the Maui County Charter. Id. at 1100–14.
SHAKA appealed the district court’s judgment in both
cases. On appeal, SHAKA, the GE Parties, and two groups
4
The district court denied a motion to intervene filed by Moms on a
Mission Hui, Moloka‘i Mahi‘ai, Gerry Ross, and the Center for Food
Safety. This denial is the subject of a separate appeal, Robert Ito Farm,
Inc. v. County of Maui, No. 15-15246, which we resolve in a concurrently
filed opinion.
12 ATAY V. COUNTY OF MAUI
of amici filed briefs, while Maui County filed a statement of
no position.
II.
A. The Parties’ threshold arguments
We first address several threshold arguments raised by the
Parties. Appellees argue that Appellants lack standing to
maintain this appeal. SHAKA contends that the district court
erred by refusing to remand the Atay action to state court and
denying their request for Rule 56(d) discovery on the scope
of regulations affecting GE crops. We reject these
arguments.5
1. Appellants have standing.
The GE Parties have moved to dismiss for lack of
appellate jurisdiction, arguing that SHAKA and other
Appellants “lack independent standing to defend the
constitutionality of the ordinance where the relevant public
officials have chosen not to.”
Article III of the U.S. Constitution limits federal courts’
power to deciding actual “cases” or “controversies.” U.S.
Const., Art. III, § 2. One element of the Constitution’s case-
or-controversy requirement is that a litigant must demonstrate
5
We also reject SHAKA’s argument that the district court abused its
discretion in denying SHAKA’s motion to 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.
ATAY V. COUNTY OF MAUI 13
standing to sue. Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1146 (2013). The standing requirement is built on
separation-of-powers principles; it “serves to prevent the
judicial process from being used to usurp the powers of the
political branches.” Id. The standing requirement “must be
met by persons seeking appellate review, just as it must be
met by persons appearing in courts of first instance.”
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)
(internal quotation marks omitted). To establish Article III
standing, a litigant must demonstrate an injury that is
“‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a
favorable ruling.’” Clapper, 133 S. Ct. at 1147 (quoting
Monsanto, 561 U.S. at 149). “As a general rule, in an
injunctive case this court need not address standing of each
plaintiff if it concludes that one plaintiff has standing.” Nat’l
Ass’n of Optometrists & Opticians LensCrafters, Inc. v.
Brown, 567 F.3d 521, 523 (9th Cir. 2009).
The GE Parties’ standing challenge relies primarily on
Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013), where
the Supreme Court held that the proponents of California’s
Proposition 8 lacked standing to defend the Proposition after
state officials refused to do so. The Court reasoned that the
intervenors had “no ‘direct stake’ in the outcome of their
appeal,” and “[t]heir only interest . . . was to vindicate the
constitutional validity of a generally applicable California
law.” Id. at 2662. The GE Parties contend that
“Hollingsworth establishes a bright-line rule: The only party
with a cognizable interest in defending the constitutionality
of a generally applicable law is the government, and the only
persons permitted to assert that interest in federal court,
accordingly, are the government’s officials or other agents.”
The GE Parties argue that Diamond v. Charles, 476 U.S. 54,
14 ATAY V. COUNTY OF MAUI
66 (1986), which held that a private doctor lacked standing to
defend the constitutionality of a state abortion law that the
state refused to defend, lends further support to this rule.
The GE Parties overlook a key aspect of the Supreme
Court’s standing analysis for initiative proponents turned
intervenors: Such intervenors can establish standing if they
can do so independently of their status as ballot initiative
proponents. For example, in Hollingsworth, the Court
specifically noted that the intervenors did not have “a
judicially cognizable interest of their own,” and “have
likewise not suffered an injury in fact.” 133 S. Ct. at
2663–64 (emphasis added). Similarly, in Diamond, although
the Court reasoned that Diamond “could not compel the State
to enforce” the restrictions on abortion even if they were
determined to be constitutional, the Court went on to analyze
Diamond’s independent allegations of standing. 476 U.S. at
64–67 (“Even if there were circumstances in which a private
party would have standing to defend the constitutionality of
a challenged statute, this is not one of them. Diamond is not
able to assert an injury in fact.”). Again, in Arizonans for
Official English v. Arizona, 520 U.S. 43, 65 (1997), the Court
analyzed the intervenors’ standing separately from their status
as proponents of a law. Without definitively resolving the
issue, the Court expressed “grave doubts” as to the
intervenors’ independent standing because their “requisite
concrete injury . . . [was] not apparent.” Id. at 66.
Thus, although SHAKA and the other Appellants’ status
as ballot initiative proponents and intervenors does not afford
them standing, they may be able to show standing
independently.
ATAY V. COUNTY OF MAUI 15
We find that the SHAKA Appellants have done so based
on the allegations of the five individual Appellants—Alika
Atay, Mark Sheehan, Bonnie Marsh, Lei``ohu Ryder, and
Lorrin Pang. Alika Atay and Mark Sheehan are Maui
residents who allege that GE farming operations on Maui,
including Monsanto’s, threaten economic harm to their
organic, non-GE farms. They allege that transgenic
contamination and the drift of wind-borne pesticides threaten
to wipe out their customer base, who will not purchase GE
food. They contend that they have had to change their
conduct because of GE farming operations. For example, Mr.
Sheehan states that he was forced to locate his farming
operations on Maui’s North Shore, but that even there he
suffers a risk of transgenic contamination and pesticide
exposure. Mr. Atay, who employs “natural farming
techniques” that require the collection of wild plants and
microorganisms, states that he has been prevented from
gathering local plants to use in his operations from areas
nearby GE farms, due to the risk of genetic contamination.
These allegations of concrete harms caused by GE farming
operations satisfy the injury-in-fact requirement. Indeed, the
Supreme Court has held that actions conventional alfalfa
farmers planned to take because of anticipated
“contamination” from GE alfalfa seed demonstrated injury in
fact. Monsanto, 561 U.S. at 154. These harms are also
redressable by a decision favorable to Appellants upholding
Maui’s ban on GE crops. Given the Ordinance’s citizen suit
provision, the possibility that the County would decline to
enforce the Ordinance does not undermine our finding of
redressability.
Appellants’ standing is also established based on
allegations regarding environmental and recreational harms
caused by pesticides used on GE farms. Lei``Ohu Ryder
16 ATAY V. COUNTY OF MAUI
alleges that she would like to swim in the waters near
Monsanto’s fields but refrains from doing so because she
fears pesticide contamination. Her feared risk of harm cannot
be dismissed as lacking credibility at the summary judgment
stage given that, as Appellants assert, these waters have been
polluted by pesticide-laden storm runoff from Monsanto’s
fields in the past. Ms. Ryder further alleges that her home is
located close to Monsanto’s fields, and she fears damaging
health effects from drifting pesticides. These are specific,
reasonable allegations that GE farming operations directly
injure the affiants’ recreational interests and health that, at the
summary judgment stage, suffice to show injury in fact.
Indeed, the Supreme Court has held that similar “conditional
statements—that [the affiants] would use the nearby North
Tyger River for recreation if [defendants] were not
discharging pollutants into it,” were sufficient to show injury
in fact. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs.(TOC), Inc., 528 U.S. 167, 183–84 (2000). Again, the
affiants’ asserted injuries are redressable by a decision in
Appellants’ favor.
We therefore conclude that Appellants have established
Article III standing and deny the GE Parties’ motion to
dismiss.
2. The district court did not err in denying SHAKA’s
motion to remand to state court.
SHAKA argues that the district court erred in refusing to
remand back to state court the Atay action, which alleged
only state law claims for declaratory relief. We review the
district court’s denial of the motion to remand for lack of
removal jurisdiction de novo. United Computer Sys., Inc. v.
AT & T Corp., 298 F.3d 756, 760 (9th Cir. 2002).
ATAY V. COUNTY OF MAUI 17
A state civil action is removable to federal court if the
federal court could have exercised original jurisdiction.
28 U.S.C. § 1441(a). In general, a state court action may not
be removed to federal court on the basis of an anticipated
federal defense, including federal preemption. Retail Prop.
Trust v. United Bhd. of Carpenters & Joiners of Am.,
768 F.3d 938, 947 (9th Cir. 2014) (citing Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)). However, declaratory
judgment cases operate under a different rule: “Where the
complaint in an action for declaratory judgment seeks in
essence to assert a defense to an impending or threatened
state court action, it is the character of the threatened action,
and not of the defense, which will determine whether there is
federal-question jurisdiction in the District Court.” Pub.
Serv. Comm’n of Utah v. Wycoff Co. Inc., 344 U.S. 237, 248
(1952); see Medtronic, Inc. v. Mirowski Family Ventures,
LLC, 134 S. Ct. 843, 848 (2014).
Here, SHAKA filed the Atay action in state court in
anticipation of the GE Parties’ federal suit. Indeed, SHAKA
stated in its complaint that it filed suit due to the “threat of
imminent and inevitable litigation regarding” the Ordinance’s
legality. SHAKA attempts to distinguish the rule set forth in
Public Services Commission of Utah by arguing that the
County is the defendant in both actions. However, as the
district court recognized in granting SHAKA’s motion to
intervene, SHAKA is in effect standing in for the County as
the defendant in the Robert Ito Farm action. In these
circumstances, it is the character of the Robert Ito Farm
action, in which questions of federal preemption are front and
center, that determines whether there is federal question
jurisdiction. Id. Therefore, the district court did not err in
denying SHAKA’s motion to remand.
18 ATAY V. COUNTY OF MAUI
3. The district court did not err in denying SHAKA’s
request for Rule 56(d) discovery.
SHAKA also argues that the district court improperly cut
off discovery on state and federal regulation of GE crops in
Maui County before ruling on the preemption arguments
presented in the GE Parties’ summary judgment motion.
Under Rule 56(d), when “a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition [to a motion for
summary judgment], the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d). The burden is on
the party seeking a Rule 56(d) continuance “to proffer
sufficient facts to show that the evidence sought exists, and
that it would prevent summary judgment.” Chance v. Pac-
Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001).
We review the district court’s denial of discovery for abuse
of discretion. Burlington N. Santa Fe R.R. Co. v. Assiniboine
& Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 775
(9th Cir. 2003).
The district court did not abuse its discretion in
concluding that SHAKA had failed to show that additional
facts were essential to its ability to oppose summary
judgment on preemption grounds. As we have recognized,
“[p]reemption is predominantly a legal question, resolution of
which would not be aided greatly by development of a more
complete factual record.” Hotel Emps. & Rest. Emps. Int’l
Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1513 (9th
Cir. 1993) (citing Pac. Gas & Elec. Co. v. State Energy Res.
Conserv. & Dev. Comm’n, 461 U.S. 190, 201 (1983)). The
ATAY V. COUNTY OF MAUI 19
preemption questions raised in this case are no different, and
can be resolved without further development of background
facts.
B. Federal preemption
The GE Parties advance two arguments that Maui’s ban
on the cultivation and testing of GE plants is preempted by
federal law. First, they argue that the Ordinance is expressly
preempted by the Plant Protection Act (PPA), 7 U.S.C.
§ 7756(b), in its application to plants that APHIS regulates as
plant pests. Second, they contend that the Ordinance is
impliedly preempted in its entirety because it frustrates the
PPA’s purposes and objectives. We address each argument
in turn after summarizing federal preemption principles and
the federal regulatory scheme governing GE plants.6
1. Overview of Federal Preemption Principles
The Supremacy Clause makes the laws of the United
States “the supreme Law of the Land; . . . any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const., Art. VI, cl. 2. “Put simply,
federal law preempts contrary state law.” Hughes v. Talen
Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016). Federal
judges, of course, are not constitutionally charged with
making federal law. Rather, that is primarily the role of
Congress and it is thus “Congress rather than the courts that
preempts state law.” Chamber of Commerce of U.S. v.
6
Our review of the district court’s decision regarding preemption and
its interpretation and construction of a federal statute is de novo. Am.
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
2009).
20 ATAY V. COUNTY OF MAUI
Whiting, 563 U.S. 582, 607 (2011). Our task as judges “is to
ascertain Congress’ intent in enacting the federal statute at
issue,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983),
which “is the ultimate touchstone in every pre-emption case,”
Hughes, 136 S. Ct. at 1297.
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.” Cipollone v. Liggett
Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation
marks omitted). In other words, federal preemption “may be
either express or implied.” Shaw, 463 U.S. at 95. Where the
intent of a statutory provision that speaks expressly to the
question of preemption is at issue, “we do not invoke any
presumption against pre-emption but instead focus on the
plain wording of the clause, which necessarily contains the
best evidence of Congress’ pre-emptive intent.” Puerto Rico
v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016)
(internal quotation marks omitted).
Absent an express congressional command, a state law is
preempted if it actually conflicts with federal law or if federal
law so thoroughly occupies a legislative field that it is
unreasonable to infer that Congress intended for supplemental
state or local regulation. Cipollone, 505 U.S. at 516. A
conflict giving rise to preemption exists “where it is
impossible for a private party to comply with both state and
federal law, . . . and where under the circumstances of a
particular case, the challenged state law stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of Congress.” Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 372–73 (2000) (alterations and
internal citations omitted). What is a sufficient “obstacle” to
give rise to implied preemption is a matter of judgment to be
ATAY V. COUNTY OF MAUI 21
informed by examining the federal statute as a whole and
identifying its purpose and intended effects. Id. at 373.
Particularly where a statute regulates a field traditionally
occupied by states, such as health, safety, and land use, a
“presumption against preemption” adheres. Wyeth v. Levine,
555 U.S. 555, 565 n.3 (2009). We assume that a federal law
does not preempt the states’ police power absent a “clear and
manifest purpose of Congress.” Id. at 565 (internal quotation
marks omitted).
“[A]n agency regulation with the force of law [also] can
pre-empt conflicting state requirements.” Id. at 576. Only
specific agency rules carrying the force and effect of federal
law may give rise to conflict preemption, however, not
“agency proclamations of pre-emption.” Id.; see also City of
New York v. FCC, 486 U.S. 57, 63 (1988). We determine
whether an agency’s rule has the force and effect of law
“under the standard set forth in United States v. Mead Corp.,
533 U.S. 218, 234 (2001), and its progeny.” Reid v. Johnson
& Johnson, 780 F.3d 952, 964 (9th Cir. 2015). The latter
category of agency pronouncements about the impact of state
and local law on federal statutory objectives is entitled to
“some weight” though, weight proportional to its power to
persuade. Wyeth, 555 U.S. at 577; cf. Mead Corp., 533 U.S.
at 234–35; Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944).
2. The federal regulatory scheme governing GE
plants
As we explained in Vilsack, 718 F.3d at 833–36, three
federal agencies regulate GE plants: the Food and Drug
Administration, the Environmental Protection Agency, and
22 ATAY V. COUNTY OF MAUI
the U.S. Department of Agriculture, through APHIS. Only
APHIS’s regulation under the PPA is at issue here.
Congress enacted the PPA in 2000 to protect against
harms to “the agriculture, environment, and economy of the
United States” caused by “plant pests” and “noxious weeds,”
while facilitating commerce in non-dangerous plants.7
7 U.S.C. § 7701(1), (3), (5). In service of this goal, the PPA
prohibits the movement of plant pests except with a permit.
Id. § 7711(a). The PPA further authorizes the Secretary of
Agriculture, and by delegation APHIS, to prohibit or restrict
the movement in interstate commerce of plants and other
products as “necessary to prevent the introduction . . . or the
dissemination of a plant pest or noxious weed within the
United States.” Id. § 7712(a); see also id. § 7712(f).
A “plant pest” is defined as any of eight types of listed
organisms that “can directly or indirectly injure, cause
damage to, or cause disease in any plant or plant product.”
Id. § 7702(14). Environmental and economic harm
associated with transgenic contamination caused by GE
plants is not “plant pest injury” that the PPA requires APHIS
to protect against. Vilsack, 718 F.3d at 833. However, “a
genetically modified organism is regulated as a plant pest if
it is created using an organism that is itself a plant pest,” id.
at 835 (citing 7 C.F.R. § 340.1), or if APHIS “has reason to
believe [that it] is a plant pest,” 7 C.F.R. § 340.1; Vilsack,
718 F.3d at 835, 840. Such GE plants are called “regulated
articles” or “presumptive plant pests.” Id. at 833; see
7 C.F.R. § 340.0(a) & n.1; id. § 340.1 (definition of
7
The PPA consolidated and built upon preexisting statutes and
implementing regulations governing plant pests and noxious weeds. See
Vilsack, 718 F.3d at 834 (explaining statutory history).
ATAY V. COUNTY OF MAUI 23
“regulated article”); id. § 340.2 (groups of organisms that are
or contain plant pests).
Such GE plants are regulated as plant pests “until the
agency concludes on the basis of scientific evidence that the
modified plant is not a ‘plant pest.’” Vilsack, 718 F.3d at
835. Accordingly, with narrow exceptions, APHIS’s
regulations prohibit the introduction—including the
movement through the United States and “use . . . outside the
constraints of physical confinement that are found in a
laboratory, contained greenhouse, . . . or other contained
structure,” 7 C.F.R. § 340.1—of regulated articles without
APHIS’s permission. Id. § 340.0(a).
APHIS’s permitting process imposes strict conditions on
any field test or other approved release into the environment
in order to prevent the dissemination of regulated articles. Id.
§§ 340.3(c) (providing performance standards), 340.4(f)
(providing general permit conditions, which are in addition to
permit-specific conditions). Approved field trials are subject
to ongoing inspections by USDA inspectors, id.
§§ 340.3(d)(6), 340.4(d), and APHIS requires a series of
reports regarding the trials, id. §§ 340.3(d)(4), 340.4(f)(9).
Any party who believes that a certain regulated article is
unlikely to pose a risk as a plant pest may petition APHIS for
a determination of nonregulated status of the article. Id.
§ 340.6(a). To succeed in such a petition, an applicant must
demonstrate, through an extensive evaluation process
involving data collected from APHIS-authorized field tests
and other experiments, that the regulated article is no more
likely to cause plant pest harms than its non-GE counterpart.
See Vilsack, 718 F.3d at 835; 7 C.F.R. § 340.6(c). The
decision-making process typically involves analysis pursuant
24 ATAY V. COUNTY OF MAUI
to the National Environmental Policy Act. See Vilsack,
718 F.3d at 832, 837. If APHIS grants the petition, APHIS
no longer has jurisdiction to regulate the plant or other article.
Id. at 842.
3. The Ordinance is expressly preempted by the PPA
to the extent that it seeks to ban GE plants that
APHIS regulates as plant pests.
Congress included an express preemption provision in the
PPA. The provision states in relevant part that “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 weed within the United States.” 7 U.S.C.
§ 7756(b)(1).8 Three conditions thus must be met for a local
law to be preempted: (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. Each condition is met here.
8
The preemption provision contains exemptions for (A) regulations
consistent with and not in excess of federal regulation and (B) states or
political subdivisions that demonstrate a “special need” to the Secretary
of Agriculture. 7 U.S.C. § 7756(b). These exemptions are not applicable
here because the Ordinance exceeds federal regulation and the County did
not attempt to demonstrate a “special need.”
ATAY V. COUNTY OF MAUI 25
First, the Ordinance regulates “movement in interstate
commerce” by banning all testing, planting, or cultivation of
GE plants to prevent their introduction or dissemination.
Under the PPA, “movement” is defined broadly and expressly
includes a plant’s “release into the environment,” id.
§ 7702(9)(E), such as open-air field testing of GE plants.
7 C.F.R. § 340.1 (defining “release into the environment”).
Experimental GE plants grown on test fields in Maui are
without doubt involved in interstate commerce. Setting aside
the global market for GE seed crops, seeds and other
organisms carried afield by wind or other vectors “do not
acknowledge State lines.” 52 Fed. Reg. 22,892, 22,894 (June
16, 1987). Maui’s Ordinance itself states that GE crops
impact “foreign markets” and “even a single event of
Transgenic Contamination can and has resulted in significant
economic harm when the contaminated crops are rejected by
buyers.” Ordinance § 2(14). The Ordinance is expressly
designed to “defend and promote the economic integrity of
organic and non-GE markets that are harmed by transgenic
contamination by GE Operations and Practices.” Id. § 4(2).
While the phrase “movement in interstate commerce”
within the meaning of the PPA’s preemption clause may be
narrower than the full scope of Congress’s Commerce Clause
power, see Circuit City Stores Inc. v. Adams, 532 U.S. 105,
118 (2001), we find that the phrase encompasses federally
regulated GE crops grown in Hawaii. SHAKA’s narrower
interpretation, which would limit the scope of the preemption
clause to local laws addressing plants that are in the act of
traveling to or through at least one other state, is less
consistent with the statute’s larger context and purpose,
which clearly envisions the dissemination of plants and seeds
from fields as implicating movement in interstate commerce.
See, e.g., 7 U.S.C. § 7711(a). Indeed, Congress expressly
26 ATAY V. COUNTY OF MAUI
recognized in the PPA that “all plant pests, noxious weeds,
plants, plant products, articles capable of harboring plant
pests or noxious weeds regulated under this chapter are in or
affect interstate commerce.” Id. § 7701(9).
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. Ordinance § 4(1)–(2); see
also id. § 2(3) (stating that “GE Organisms . . . exist in the
County as a possible invasive species”). The Ordinance
implements this purpose by banning almost all planting and
testing of GE plants. Id. § 5. The Ordinance states that
existing governmental oversight of GE plants is “inadequate”
to achieve this purpose. Id. § 2(9).
SHAKA argues that the second preemption condition is
not met because the Ordinance seeks to control GE plants in
order to prevent harms associated with transgenic
contamination and pesticides, which are not “plant pest
harms” within the meaning of the PPA. Vilsack, 718 F.3d at
839. What matters under the preemption clause, however, is
whether a local law seeks to control, eradicate, or prevent the
introduction or dissemination of plants that APHIS regulates
as plant pests. The fact that APHIS regulates such plants for
reasons other than second-order concerns that motivated the
local law, such as concern with transgenic contamination, is
irrelevant as far as the express preemption clause is
concerned. To hold otherwise would allow state and local
governments to subvert the preemption clause by “simply
publishing a legislative committee report articulating some []
interest or policy” other than preventing plant pest harms that
would be furthered by a proposed law banning plant pests.
ATAY V. COUNTY OF MAUI 27
See Perez v. Campbell, 402 U.S. 637, 652 (1971); cf. Puente
Arizona v. Arpaio, 821 F.3d 1098, 1106 (9th Cir. 2016) (“If
Congress intended to preempt laws like the one challenged
here, it would not matter what Arizona’s motives were; the
laws would clearly be preempted.”). Thus, a local law’s
purpose matters to the preemption analysis under 7 U.S.C.
§ 7756(b)(1) only to the extent that the local law must be
intended to control plants that APHIS regulates as plant pests,
rather than having only an incidental effect on such plants.
Under the PPA’s preemption clause, state and local
governments may not supplement the strict controls that
apply to federally regulated plant pests without APHIS’s
approval.
Third, APHIS has issued regulations in order to prevent
the dissemination of the class of plant pests at issue, GE
crops. See 7 C.F.R. Part 340. SHAKA’s argument that the
third preemption condition is not met because GE plants are
regulated articles, not plant pests, is unavailing. APHIS
deems nearly all GE plants to be plant pests because nearly
all GE plants are created using Agrobacterium, which is a
listed plant pest. 7 C.F.R. § 340.2(a). If a GE plant is made
with Agrobacterium or another plant pest listed in § 340.2,
APHIS considers it to be a plant pest. Id. § 340.0 n.1; 51 Fed.
Reg. 23,352, 23,355 (June 26, 1986) (“USDA believes that an
organism or product is a plant pest if the donor, recipient,
vector or vector agent of the genetically engineered organism
or product comes from a member of one of the groups listed
in § 340.2.” (emphasis added)); 52 Fed. Reg. at 22,895
(“[T]he definition of plant pest was deliberately made broad
by Congress to include those organisms that might later be
found to be injurious to plants.”); id. at 22,893–94. We
explained this in Vilsack—“a genetically modified organism
28 ATAY V. COUNTY OF MAUI
is regulated as a plant pest if it is created using an organism
that is itself a plant pest.” 718 F.3d at 835 (emphasis added).
APHIS may also regulate GE plants that were not made
with a listed plant pest if they “are believed to be plant pests.”
7 C.F.R. § 340.0 n.1. According to the GE Parties, this class
of regulated articles is not at issue here. Even if such
presumptive plant pests are at issue, however, SHAKA is
incorrect in asserting that presumptive plant pests are merely
“regulated articles” and not plant pests for the purposes of the
preemption clause. The regulations indicate that all regulated
articles are considered to be plant pests. See 7 C.F.R.
§ 340.0(b) (equating “regulated article” with “plant pest”).
Strict regulations apply to all plant pests—presumed or
listed—up until the point they are deregulated, at which point
they fall outside of the preemption clause and APHIS’s
jurisdiction under the PPA. See Vilsack, 718 F.3d at 841.
Indeed, accepting the view that presumed plant pests are not
plant pests could create a regulatory paradox. If such plants
were not considered plant pests or noxious weeds under the
PPA, APHIS presumably would have no power to regulate or
deregulate them. No party takes this position in this case.
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. The Ordinance seeks to
regulate “the movement in interstate commerce” of plant
pests “in order to control . . . , eradicate . . . , or prevent the
introduction or dissemination of . . . plant pest[s]” that APHIS
regulates extensively. 7 U.S.C. § 7756(b)(1).
ATAY V. COUNTY OF MAUI 29
4. The Ordinance is not impliedly preempted.
The PPA’s express preemption clause only preempts the
Ordinance in its application to plants regulated by APHIS as
plant pests, not plants that APHIS has deregulated and thus
has no authority over. However, the GE Parties argue, and
the district court held below, that the Ordinance is also
impliedly preempted by the PPA in its application to
deregulated, “commercialized” GE crops.9 See Robert Ito
Farm, 111 F. Supp. 3d at 1106–07. The GE Parties contend
that the Ordinance’s ban on deregulated GE crops
impermissibly frustrates the PPA’s purpose of facilitating
commerce in non-dangerous plants, while protecting the
nation from dangerous plant pests and noxious weeds. We
disagree.
We begin our search for implied preemptive intent by
observing the PPA’s express preemption clause creates a
“reasonable inference” that Congress did not intend to
preempt state and local laws that do not fall within the
clause’s scope. Freightliner Corp. v. Myrick, 514 U.S. 280,
288 (1995); see also Cipollone, 505 U.S. at 517 (holding that
a court should not consider implied theories of preemption
where an express preemption clause “provides a reliable
indicium of congressional intent with respect to state
authority”) (internal quotation marks omitted). As the GE
Parties concede, the Ordinance’s application to federally
deregulated GE crops does not fall within the PPA’s express
preemption clause. The resultant “reasonable inference” that
9
A different judge rejected the same argument in reviewing a similar
ban on GE crops imposed by Hawaii County. Hawai'i Floriculture &
Nursery Ass’n v. Cty. of Hawaii, No. Civ. 14-00267 BMK, 2014 WL
6685817, at *9–10 (D. Haw. Nov. 26, 2014).
30 ATAY V. COUNTY OF MAUI
Congress did not intend to preempt the Ordinance might be
overcome, of course. Thus, for example, a local law that is
consistent with an express preemption clause may still be
preempted if it “actually conflicts” with federal law. Geier v.
Am. Honda Motor Co., 529 U.S. 861, 871 (2000). However,
the GE Parties have not shown any actual conflict between
the Ordinance’s ban on federally deregulated GE crops and
any federal statutory or regulatory provision. Indeed, at
APHIS’s urging, we held in Vilsack that APHIS “no longer
had jurisdiction to continue regulating” a GE plant once
APHIS decided to deregulate it. 718 F.3d at 832.
Nor have the GE Parties shown more broadly that the
Ordinance impermissibly frustrates any federal objective by
banning federally deregulated, “commercialized” GE crops.
The Supreme Court has warned that obstacle preemption
analysis does “not justify a freewheeling judicial inquiry
into whether a state statute is in tension with federal
objectives[, because] such an endeavor would undercut the
principle that it is Congress rather than the courts that
preempts state law.” Whiting, 563 U.S. at 607 (internal
quotation marks omitted). The Court’s “precedents establish
that a high threshold must be met if a state law is to be
preempted for conflicting with the purposes of a federal Act.”
Id. (internal quotation marks omitted).
Even assuming that an obstacle preemption analysis is
called for because the PPA’s express preemption provision
does not “provide[] a reliable indicium of congressional
intent with respect to state authority,” Cipollone, 505 U.S. at
517 (internal quotation marks omitted), the high threshold
ATAY V. COUNTY OF MAUI 31
required for preemption is not met here.10 Nothing in the
PPA suggests that Congress intended to prevent state and
local governments from exercising their traditional authority
over agricultural land use with respect to certain crops simply
because APHIS deregulated them. To hold otherwise would
have the backwards effect of preventing states and local
governments from regulating crops formerly considered to be
plant pests, even though states and local governments may
regulate conventional crops that were never considered plant
pests and raise fewer concerns. Such a holding would have
far-reaching practical effects. Because a large percentage of
commercial crops grown in the United States are GE crops,
states and counties across the nation would be prevented from
regulating an enormous swath of agriculture. We do not
believe that Congress so intended.
To hold otherwise would also leave a gap in the
regulation of GE Plants. We held in Vilsack that “APHIS . . .
has no power to regulate the adverse economic effects that
could follow [a GE crop’s] deregulation,” including due to
transgenic contamination. 718 F.3d at 841. We find no
indication, clear or otherwise, that Congress intended to
prevent states from closing this regulatory gap. Indeed, the
GE Partes ultimately concede that “[a]n appropriate local
entity . . . might be able to fill gaps in the federal regime to
address these issues.” There is nothing in the PPA or its
implementing regulations suggesting that a local government
10
As has the Supreme Court, “[w]e recognize, of course, that the
categories of preemption are not rigidly distinct,” and what might be
understood as an obstacle preemption argument might instead be
understood as a field preemption argument. Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 372 n.6 (2000) (internal quotation marks
omitted).
32 ATAY V. COUNTY OF MAUI
could not choose to do so by prohibiting the cultivation of
commercialized GE crops in a particular area.
We acknowledge that statements made in the introduction
to the White House Office of Science and Technology
Policy’s “Proposal for Coordinated Framework for
Regulation of Biotechnology,” 49 Fed. Reg. 50,856 (Dec. 31,
1984), recognized the importance of “achieving national
consistency” in the regulation of biotechnology. Such a
policy statement in the introduction of a policy document
certainly does not have the force and effect of law and thus its
own preemptive effect. See Wyeth, 555 U.S. at 576; Reid,
780 F.3d at 964. The statement also has little power to
persuade. The statement’s passing nature does not evince
thoroughness of consideration, and it was not even repeated
in the finalized framework. See 51 Fed. Reg. 23,302 (June
26, 1986). The statement also was not issued by APHIS,
the agency charged with implementing the PPA. Moreover,
the statement is not entirely consistent with later
pronouncements. The statement is at odds with Congress’s
subsequent enactment of the PPA’s express preemption
clause, which does not require national consistency in the
regulation of commercialized GE crops. Additionally,
APHIS subsequently has stated that “the issuance of final
rules does not per se prohibit State regulation of the intrastate
movement of genetically engineered plants.” 58 Fed. Reg.
17,044, 17,053 (Mar. 31, 1993). Rather, the agency
explained, “State regulations would be preempted only if they
are inconsistent with any Federal orders or regulations
promulgated pursuant to those Acts.” Id. These statements
are consistent with the scope of the PPA’s express
preemption clause. Again, a county’s prohibition on the
growing of GE crops in a particular area is not inconsistent
with any federal regulation under the PPA to the extent the
ATAY V. COUNTY OF MAUI 33
bans apply to plants that are no longer regulated under the
PPA.
Accordingly, we hold that the PPA does not impliedly
preempt the Ordinance in its application to GE crops that
APHIS has deregulated. The regulation of commercialized
crops, both of GE and traditional varieties, remains within the
authority of state and local governments.
C. State preemption
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 and thus affirm the
district court’s decision.11
As explained in our concurrently filed opinion in
Syngenta v. County of Kauai, No. 14-16833, 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 state.” Richardson v. City & Cty. of Honolulu,
868 P.2d 1193, 1209 (Haw. 1994). Courts frequently treat
11
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).
34 ATAY V. COUNTY OF MAUI
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).
We begin by summarizing Hawaii law regulating
potentially harmful plants and then we apply Hawaii’s
comprehensive statutory scheme test.
1. Hawaii law regulates the importation,
transportation, sale, control, and eradication of
potentially harmful plants.
As an isolated island chain with a large number of
endemic species and “more threatened and endangered
species per square mile than any other place on earth,” USDA
Regulation of Biotechnology Field Tests in Hawaii, supra, at
1, Hawaii is perhaps more threatened by invasive species than
any other state. Its history with human-introduced invasive
species is long and, as history has shown, well-intentioned
fixes to the problem have sometimes proven colossally
uninformed. An infamous example occurred in 1883, when
sugarcane farmers imported mongooses to control invasive
ATAY V. COUNTY OF MAUI 35
rats that plagued Maui and other islands.12 It turned out that
rats are nocturnal and mongooses are diurnal, and thus the
mongooses mostly hunted other prey, ravaging native bird
populations and becoming a widespread problem that, like the
rats, persists today. Introduced animals are not the only
threat. As a group of biologists observed, “[t]he problem of
introduced plants is especially significant in Hawaii.”13
To address the threat posed by introduced, potentially
harmful plants, Hawaii has promulgated five chapters of
Hawaii law. The State also coordinates closely with APHIS
with respect to plants within APHIS’s jurisdiction. See
USDA Regulation of Biotechnology Field Tests in Hawaii,
supra, at 2 (“Hawaii is one of the most active States when it
comes to providing input on field test applications.”).
In relevant part, Chapter 141 (titled the Department of
Agriculture) authorizes the Hawaii Department of Agriculture
(DOA) to enact rules regulating potentially harmful plants,
including:
The introduction, transportation, and
propagation of . . . plants; . . . The quarantine,
inspection, . . . destruction, or exclusion,
either upon introduction into the State, or at
12
See Mongoose, Hawaii Invasive Species Council,
http://dlnr.hawaii.gov/hisc/info/invasive-species-profiles/mongoose/ (last
vistied Sept. 2, 2016).
13
David Pimentel, Lori Lach, Rodolfo Zuniga, & Doug Morrison,
Environmental and Economic Costs Associated with Non-Indigenous
Species in the United States, Cornell Chronicle, Cornell University (Jan.
24, 1999), http://www.news.cornell.edu/stories/1999/01/environmental-
and-economic-costs-associated-non-indigenous-species.
36 ATAY V. COUNTY OF MAUI
any time or place within the State, of any . . .
seed . . . or any other plant growth or plant
product . . . that is or may be in itself
injurious, harmful, or detrimental to the
[agricultural or horticultural industries or the
forests of the State]; [and] The manner in
which . . . research activities may be
undertaken.
Haw. Rev. Stat. (HRS) § 141-2. Chapter 141 also requires
the DOA to establish “pest designations,” subject to a limited
exception for “incipient infestation[s]” requiring “immediate
action.” Id. § 141-3. The DOA must “develop and
implement a detailed control or eradication program for any
pest designated.” Id. § 141-3.5. Additionally, the DOA must
“so far as reasonably practicable, assist, free of cost to
individuals, in the control or eradication of . . . noxious
weeds, or other pests injurious to the environment or
vegetation of value.”14 Id. § 141-3.
Chapter 150 (the Hawaii Seed Law) addresses the sale of
agricultural and vegetable seeds. Among other restrictions,
the law prohibits the sale of such seeds if they are
contaminated by noxious weed seeds in excess of established
tolerances. Id. § 150-23. The law authorizes the DOA to
designate noxious weed seed by rule. Id. § 150-22; see also
id. § 150-21 (defining “noxious weed seed”).
Chapter 150A (the Hawaii Plant Quarantine Law)
prohibits importation of “restricted plants” without a permit,
14
“Control . . . means to limit the spread of a specific noxious weed
and to reduce its density to a degree where its injurious, harmful, or
deleterious effect is reduced to a tolerable level.” HRS § 152-1.
ATAY V. COUNTY OF MAUI 37
and directs the DOA to designate restricted plants by rule. Id.
§ 150A-6.1(a), (b). Such plants include designated noxious
weeds and other “specific plants that may be detrimental or
potentially harmful to agriculture, horticulture, the
environment, . . . or public health.” Id. § 150A-6.1(b).
Pursuant to its authority, the DOA has enacted restrictions on
several disease-carrying commercial crops. Haw. Admin. R.
(HAR) §§ 4-72-6, 4-72-9–4-72-12. The Hawaii Plant
Quarantine Law also authorizes the DOA to “regulate or
prohibit the sale [within the State] of . . . restricted plants.”
HRS § 150A-6.1(c). The law prohibits the sale and
importation of noxious weeds, however, except for research
with a permit issued by the DOA. Id. § 150A-6.1(d).
Furthermore, the law prohibits the transportation within the
State of any “flora specified by rules and regulations of [the
DOA] except by a permit.” Id. § 150A-8. The law also
creates “an advisory committee on plants and animals,”
which is comprised of certain officials and other members
who “are thoroughly conversant with modern ecological
principles and the variety of problems involved in the
adequate protection of [the State’s] natural resources.” Id.
§ 150A-10. The committee is charged with “advising the
department in problems relating to the introduction,
confinement, or release of plants, animals, and
microorganisms.” Id.
Chapter 152 also addresses noxious weeds. HRS § 152-3
prohibits the introduction or transportation of “specific
noxious weeds or their seeds or vegetative reproductive parts
into any area designated . . . as free or reasonably free of
those noxious weeds,” except as permitted for educational or
research purposes. Chapter 152 authorizes the DOA to
designate noxious weeds and to cooperate with landowners
for their control or eradication. Id. §§ 152-2, 152-4, 152-6;
38 ATAY V. COUNTY OF MAUI
see HAR §§ 4-68-3–4-68-8 (criteria for noxious weed
designation).
Finally, Chapter 194 establishes an invasive species
council to provide “policy level direction, coordination, and
planning among state departments, federal agencies, and . . .
local initiatives for the control and eradication of harmful and
invasive species.” HRS § 194-2(a).15
In sum, Hawaii law establishes a regime for the regulation
of “restricted” or “noxious” plants, i.e., “any plant species
which is, or which may be likely to become, injurious,
harmful, or deleterious to the agricultural, horticultural,
aquacultural, or livestock industry of the State and to forest
and recreational areas and conservation districts of the State,
as determined and designated by the department from time to
time.” Id. § 152-1; see also id. § 150-21 (defining “noxious
weed seed”); id. § 150A-6.1 (defining “restricted plants”).
2. The Ordinance and Hawaii law address the same
subject.
Maui’s GE Plant Ordinance addresses the same subject
matter as the statutes above—the regulation of potentially
harmful plants and invasive species. See, e.g., HAR §§ 4-72-
6, 4-72-9–4-72-12.
The fact that no state statute or DOA rule specifically
mentions GE crops does not foreclose a finding of implied
15
As explained in our concurrently filed opinion in Syngenta Seeds,
Inc. v. County of Kauai, Nos. 14-16833, 14-16848, Hawaii also has a
comprehensive statutory scheme for the regulation of pesticides, another
concern that motivates Maui’s Ordinance. See HRS ch. 149A.
ATAY V. COUNTY OF MAUI 39
preemption. The statutes’ delegations of broad rulemaking
authority to the DOA includes the power to enact restrictions
specific to GE crops, at least should the DOA find that
specific GE crops are potentially harmful to agriculture or the
environment. See, e.g., HRS §§ 141-2, 150-22, 150A-6.1(b),
(c). Indeed, the DOA has exercised its authority to impose
restrictions on several commercial crops, including
sugarcane, papaya, cucurbit, banana, and coffee. HAR §§ 4-
72-6, 4-72-9–4-72-12. The DOA imposed these restrictions
due to concerns with insects and diseases these crops carry.
Id. However, the same authority supporting these restrictions
would allow the DOA, as far as state law is concerned, to
regulate GE commercial crops due to risks such as genetic
contamination of non-GE crops and other plants. Indeed, as
Maui’s Ordinance states, “GE Organisms are not a part of the
natural environment of Maui County and instead exist in the
County as a possible invasive species.” Ordinance § 2(3).
Hawaii has numerous regulations for the control of plant
pests, noxious weeds, and invasive species and has created an
invasive species council to develop “policy level direction”
on this subject. HRS § 194-2(a).
Hawaii’s regime for regulating invasive plant species and
other harmful plants, and the legislature’s delegations of
authority to the DOA to enact rules addressing the specific
subject matter of the Ordinance distinguishes this case from
those cited by SHAKA, in which the same-subject-matter
requirement was not met. For example, in Stallard v.
Consolidated Maui, Inc., the Hawaii Supreme Court found
that the same-subject-matter requirement was not met where
a local law addressed timeshares at hotels while the state
statutory scheme at issue regulated timeshares at
developments other than hotels. 83 P.3d 731, 736–37 (Haw.
2004). Unlike Stallard, the state statutory scheme at issue
40 ATAY V. COUNTY OF MAUI
here addresses the “universe” of potentially harmful plants,
and the County’s ordinance addresses a “‘galaxy’ thereof,”
GE crops. See Richardson, 868 P.2d at 1209.
3. Hawaii’s statutory scheme for the regulation of
potentially harmful plants is comprehensive.
As our discussion of Hawaii’s laws illustrate, the State’s
statutory scheme for the regulation of potentially harmful
plants is comprehensive. As explained, the scheme governs
the importation, sale, transportation, control, and eradication
of potentially harmful plants. The scheme also addresses
research and propagation of potentially harmful plants, HRS
§ 150A-6.1(d), and areas within the state where restricted
plants may not be introduced, id. § 152-3. It is true that the
DOA has not promulgated any rules to regulate some
concerns associated with GE crops, such as genetic
contamination of conventional crops and wild plant species.
However, the State does have laws that would combat any
such crops should they prove “detrimental or potentially
harmful to agriculture, horticulture, the environment, . . . or
public health.” Id. § 150A-6.1(b). Moreover, as noted, the
State coordinates closely with APHIS on the regulation of
non-commercialized GE plants. We find that the State’s
extensive scheme for regulating potentially harmful plants
can only be described as comprehensive.
4. The State’s statutory scheme discloses a clear
inference that the legislature intended for the
State’s regulation of potentially harmful plants to
be exclusive of supplemental local rules.
Finally, we find that the statutory scheme for potentially
harmful plants discloses a clear inference that the legislature
ATAY V. COUNTY OF MAUI 41
intended for the State’s regulation of potentially harmful
plants to be exclusive of supplemental local regulations.
We find preemptive intent “apparent from the
pervasiveness of the . . . statutory scheme.” In re Application
of Anamizu, 481 P.2d 116, 119 (Haw. 1971). The
legislature’s broad conferral to the DOA of power to regulate
plant pests and invasive species, which per Maui’s Ordinance
may include GE crops, also supports an inference of
preemptive intent. Similarly, in Citizens Utilities Co. v.
County of Kauai, the Hawaii Supreme Court found a county
law regulating the height of utility poles was preempted by
state law that “expressly authoriz[ed a state agency] to
supervise and regulate public utilities,” even though the
statute did not address the specific subject of pole heights.
814 P.2d 398, 400 (Haw. 1991).
Several specific provisions in the State’s statutory scheme
further evidence that the legislature intended for the State’s
regulatory oversight of potentially harmful plants to be
uniform and exclusive of supplemental local rules. HRS
§ 141-3 states that “pest designations shall be established by
rule, including the criteria and procedures for the designation
of pests for control or eradication.” HRS § 150A-6.1 states
that the Board of Agriculture “shall maintain a list of
restricted plants that require a permit for entry into the State.”
HRS § 194-3 states that “[a] state department that is
designated as a lead agency under section [194-2(a)(7)], with
respect to a particular function of invasive species control,
shall have sole administrative responsibility and
accountability for that designated function of invasive species
control.” These provisions indicate that the legislature
intended to preempt counties from controlling, eradicating, or
banning plants that the State has not designated as restricted
42 ATAY V. COUNTY OF MAUI
plants or invasive species. See HRS §§ 141-3, 150A-6.1,
194-3.
This intent to achieve uniformity in rules is made express
by HRS § 194-2(a), which directs the Invasive Species
Council to provide “policy level direction, coordination, and
planning among state departments, federal agencies, and . . .
local initiatives for the control and eradication of harmful and
invasive species.” Id. § 194-2(a). Although SHAKA
references several provisions that show that local
governments have a role to play in the fight against
potentially harmful plants, the provisions are consistent with
the position expressed in § 194-2(a) that the State is charged
with setting uniform rules to guide their efforts. See id.
§ 194-2(a) (directing the invasive species council to
“[i]nclude and coordinate with the counties in the fight
against invasive species”); id. § 150-27(a)(2) (directing the
DOA to “[c]ooperate with the United States Department of
Agriculture and other agencies or associations in seed law
enforcement”). Such provisions do not show that the
legislature intended to allow local governments to unilaterally
designate and ban plant pests. Rather, the State’s scheme
provides representatives from the county a seat at the table
where such decisions are made. See HRS § 26-16(a)
(providing for representatives from each county sit on the
Hawaii Board of Agriculture).
We conclude that the legislature intended to create an
exclusive, uniform, and comprehensive state statutory scheme
for potentially harmful plants. By banning commercialized
GE plants, the Ordinance impermissibly intrudes into this
ATAY V. COUNTY OF MAUI 43
area of exclusive State regulation and thus is beyond the
County’s authority under HRS § 46-1.5(13) and preempted.16
III.
We hold that the district court did not err in denying
SHAKA’s motions to remand to state court, for Rule 56(d)
discovery, and to certify the state law questions presented to
the Hawaii Supreme Court. We deny the GE Parties’ motion
to dismiss. We hold that Maui’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, but not
expressly or impliedly preempted in its application to GE
plants that APHIS has deregulated. However, we further hold
that the Ordinance is impliedly preempted by Hawaii law in
its application to federally deregulated, commercialized GE
plants. Because we find the Ordinance invalid on other
grounds, we do not address whether the Ordinance violates
the Maui County Charter.
16
Well after oral argument, the GE Parties submitted a letter pursuant
to Fed. R. App. P. Rule 28(j) from Hawaii’s Attorney General and
attached a memo from a deputy attorney general analyzing state
preemption of Maui’s Ordinance. The memo declined to provide a
“formal opinion” but concluded that “agricultural matters involving
genetically modified plants and seeds are within the purview of the State,
not the counties.” The Attorney General’s letter enclosing the memo
states that it represents the Department of the Attorney General’s “latest
position on this matter,” but does not purport to represent the DOA’s
position. As SHAKA points out, this position is arguably inconsistent
with an earlier letter from the Department of the Attorney General, which
stated that there is no statewide statute addressing cultivation of
genetically modified organisms. While we have considered the
Department of the Attorney General’s position, we have given it little
weight given the circumstances.
44 ATAY V. COUNTY OF MAUI
The district court’s summary judgment in favor of the GE
Parties is AFFIRMED.