Alika Atay; Lorrin Pang; Mark Sheehan; Bonnie Marsh; Lei'ohu Ryder; Shaka Movement, (Sustainable Hawaiian Agriculture for the Keiki and the 'Aina) Movement, Plaintiffs-Appellants,
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. ROBERT ITO FARM, INC.; HAWAII FARM BUREAU FEDERATION, MAUI COUNTY, “Maui Farm Bureau”; MOLOKAI CHAMBER OF COMMERCE; AGRIGENETICS, INC., DBA Mycogen Seeds; MONSANTO COMPANY; CONCERNED CITIZENS OF MOLOKAI AND MAUI; FRIENDLY ISLE AUTO PARTS & SUPPLIES, INC.; NEW HORIZON ENTERPRISES, INC., DBA Makoa Trucking and Services; HIKIOLA COOPERATIVE, Plaintiffs-Appellees,
COUNTY OF MAUI, Defendant-Appellee, ALIKA ATAY; LORRIN PANG; MARK SHEEHAN; BONNIE MARSH; LEI'OHU RYDER; SHAKA MOVEMENT, Intervenor-Defendants-Appellants.
and Submitted June 15, 2016 Honolulu, Hawaii
from the United States District Court for the District of
Hawaii, Nos. 1:14-cv-00582-SOM-BMK, 1:14-cv-00511-SOM-BMK
Susan Oki Mollway, Chief Judge, Presiding
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.
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.
Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.
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.
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.
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
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
CALLAHAN, Circuit Judge
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
Background regarding GE crops and their cultivation on Maui
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 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),
(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").
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. In Hawaii, a GE
variety of papaya that is resistant to aphid-transmitted
ringspot virus is credited with saving the State's papaya
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
[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).
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. "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.
Maui County's ban on the cultivation of GE
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 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.
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.
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).
"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 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.
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.
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).
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 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
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.
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.
appealed the district court's judgment in both cases. On
appeal, SHAKA, the GE Parties, and two groups of amici filed
briefs, while Maui County filed a statement of no position.
The Parties' threshold arguments
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
Appellants have standing.
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."
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 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).
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. ...