Atay v. Cnty. of Maui

• Decision Date: 18 November 2016
• Docket Number: No. 15-16466, No. 15-16552,15-16466
• Citation: 842 F.3d 688
• Parties: 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, 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. 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, v. County of Maui, Defendant–Appellee, Alika Atay; Lorrin Pang; Mark Sheehan ; Bonnie Marsh ; Lei'ohu Ryder; Shaka Movement, Intervenor–Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

842 F.3d 688

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,

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.

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,

v.County of Maui, Defendant–Appellee,Alika Atay; Lorrin Pang; Mark Sheehan ; Bonnie Marsh ; Lei'ohu Ryder; Shaka Movement, Intervenor–Defendants–Appellants.

No. 15-16466

No. 15-16552

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2016, Honolulu, Hawaii

Filed November 18, 2016

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.

Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Mary H. Murguia, Circuit Judges.

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 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.SeeCtr. 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.¹In Hawaii, a GE variety of papaya that is resistant to aphid-transmitted ringspot virus is credited with saving the State's papaya industry.²

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, 130 S.Ct. 2743, 177 L.Ed.2d 461(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 alsoVilsack , 718 F.3d at 832, 841(explaining economic concerns raised by GE alfalfa).

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.SeeGAO 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 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 amendm...