Robert Ito Farm, Inc. v. Cnty. of Maui

Decision Date30 June 2015
Docket NumberCivil Nos. 14–00511 SOM/BMK,14–00582 SOM/BMK.
Citation111 F.Supp.3d 1088
CourtU.S. District Court — District of Hawaii
Parties ROBERT ITO FARM, INC. ; Hawaii Farm Bureau Federation, Maui County ; Molokai Chamber of Commerce ; Monsanto Company; 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, Plaintiffs v. COUNTY OF MAUI, Defendant and Alika Atay; Lorrin Pang; Mark Sheehan ; Bonnie Marsh ; Lei'ohu Ryder; and Shaka Movement, Intervenor–Defendants. Alika Atay, et al., Plaintiffs, v. County of Maui; Dow Agrosciences LLC, et al., Defendants.

Donna C. Marron, Kenneth S. Robbins, Margery S. Bronster, Rex Y. Fujichaku, Bronster Fujichaku Robbins, Honolulu, HI, James B. Rogers, Michelle N. Comeau, Nickolas A. Kacprowski, Paul Alston, Alston Hunt Floyd & Ing Honolulu, HI, for Plaintiff.

Caleb P. Rowe, Kristin K. Tarnstrom, Patrick K. Wong, Department of the Corporation Counsel Maui, Wailuku, HI, Moana Monique Lutey, Richard B. Rost, Department of the Corporation Counsel, Wailuku, HI, for Defendant.

Karin L. Holma, Michael C. Carroll, Sharon A. Lim, Bays Lung Rose & Holma, Honolulu, HI, for IntervenorDefendants.




Is a County of Maui Ordinance banning genetically engineered ("GE") activities and/or genetically modified organisms ("GMOs") preempted by federal and/or state law? Does the Ordinance exceed the County's authority? Those are the questions that the present order addresses.

As this court noted at the hearing on the motions now before the court, none of the motions asks this court to determine whether GE activities or GMOs are good, bad, beneficial, or dangerous. Nor do the pending motions ask this court to address the value of voter initiatives to adopt laws such as the Ordinance. The court recognizes the importance of questions about whether GE activities and GMOs pose risks to human health, the environment, and the economy, and about how citizens may participate in democratic processes. But any court is a reactive body that addresses matters before it rather than reaching out to grab hold of whatever matters may catch a judge's fancy because the matters are interesting, important, or of great concern to many people. This order is not an attempt by this court to pass judgment on any benefit or detriment posed by GE activities or GMOs. Notwithstanding the concern that many people have expressed on both sides of these issues, and the visible (and sometimes audible) passion of members of the substantial audiences that have attended hearings in this case, those issues are not before this court on the present motions, and those who want those issues addressed must seek means other than the present order to accomplish that.

Similarly not before the court at this time is the question of whether it might be a good idea to allow the County to regulate GE activities and GMOs.

The motions now before this court can be ruled on based on an examination of the laws in this area, without regard to political, medical, economic, or other social concerns, as important as those are. Having examined the applicable law, this court concludes that the Ordinance is indeed preempted by federal and state law and does exceed the County's authority. The court therefore declares the Ordinance invalid and unenforceable.


The Ordinance in issue was passed through the initiative process. On November 12, 2014, eight days after the ballot initiative passed, Plaintiffs Alika Atay, Lorrin Pang, Mark Sheehan, Bonnie Marsh, Lei'ohu Ryder, and SHAKA Movement (collectively, "SHAKA"), supporters of the initiative, filed a Complaint for Declaratory Relief in the Circuit Court of the Second Circuit, State of Hawaii. See ECF No. 1–3, PageID # 25 (the "Atay Action").

The following day, November 13, 2014, Robert Ito Farm, Inc., Hawaii Farm Bureau Federation, Maui County, Molokai Chamber of Commerce, Monsanto Company, Agrigenetics Inc., Concerned Citizens of Molokai and Maui, Friendly Isle Auto Parts & Supplies, Inc., New Horizon Enterprises, Inc., and Hikiola Cooperative, opponents of the initiative, sued the County of Maui by filing the Robert Ito Farm Action in this court. See Robert Ito Farm, Inc. v. County of Maui, Civil No. 14–00511 SOM/BMK, ECF No. 1 (the "Robert Ito Farm Action").

On November 17, 2014, Plaintiffs in the Robert Ito Farm Action and Maui County stipulated, and the court ordered, that the Ordinance not be "published, certified as an Ordinance, enacted, effected, implemented, executed, applied, enforced, or otherwise acted upon until March 31, 2015, or until further order of this Court, in order to allow for adequate time for the parties to brief and argue and for the Court to rule on the legality of the Ordinance as a matter of law." See id., ECF No. 26, PageID # 441.

On December 15, 2014, SHAKA intervened in the Robert Ito Farm Action. See Civ. No. 14–00511 SOM/BMK, ECF No. 63.

On December 30, 2014, Dow Agrosciences removed the Atay Action to this court. See ECF No. 1. Both the Robert Ito Farm Action and the Atay Action have been assigned to this judge. Because the issues raised in the two actions are interrelated, the court rules on both in this single order. Plaintiffs in the Robert Ito Farm Action are referred to collectively in this order as the "Seed Parties," a term the court also uses, given the substantial duplication, to include Defendants other than the County in the Atay Action.

Before the court are several motions. First, on December 17, 2014, the Seed Parties filed a motion for summary judgment in the Robert Ito Farm Action with respect to federal preemption of the Ordinance (First Cause of Action), state preemption of the Ordinance (Second Cause of Action), and alleged violation of the Maui County Charter and related state law (Fourth Cause of Action). See Robert Ito Farm Action, ECF No. 70. That motion is granted in part and denied in part.

Second, on November 21, 2014, SHAKA filed a motion to dismiss or for judgment on the pleadings in the Robert Ito Farm Action, ECF No. 39, arguing that preference should be given to resolving the issues in the Atay Action by a state court. That motion is denied, given the court's determination that the Ordinance is preempted and exceeds the authority granted by the Maui County Charter.

Third, on January 15, 2015, the County of Maui filed a motion to dismiss in the Atay Action. ECF No. 14. The court has previously addressed part of that motion, and now grants the remainder of the motion to dismiss. Because the Ordinance is invalid, SHAKA has no right to be consulted regarding implementation of it and SHAKA is not entitled to its attorneys' fees.

Finally, on June 8, 2015, SHAKA filed a motion in the Robert Ito Farm Action, seeking to be allowed to cross-claim against the County of Maui to force it to certify the election results and implement the ordinance.See ECF No. 161. That motion is also denied, given the court's determination that the Ordinance is unenforceable.


On November 4, 2014, "A Bill Placing a Moratorium on the Cultivation of Genetically Engineered Organisms" (the "Ordinance") was passed by ballot initiative in the County of Maui. See ECF No. 26, PageID # 440.1

The Ordinance renders it "unlawful for any person or entity to knowingly propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui" until such ban is amended or repealed by the Maui County Council. ECF No. 71–4, PageID # 1412. The Ordinance provides an exception to the ban on GE organisms for organisms in "mid-growth cycle" at the time of enactment of the Ordinance. See id.

The Ordinance contains "Findings," including the following:

1. The rapid and unregulated growth of commercial agricultural entities engaged in the cultivation and development of GE Organisms threatens the stability and growth of Maui County's agricultural economy, the health of its citizens, and its environment.
3. GE Organisms are not a part of the natural environment of Maui County and instead exist in the County as a possible invasive species.
4. The genetic engineering of plants and animals often causes unintended consequences. Manipulating genes via genetic engineering and inserting them into organisms is an imprecise process. The results are not always predictable or controllable. Mixing plant, animal, bacterial, and viral genes through genetic engineering in combinations that are not selected for in nature may produce results that lead to adverse health or environmental consequences and threaten Maui County's cultural heritage, Environment and Public Trust Resources.
14. The contamination of agricultural products with GE Organisms can have a myriad of significant impacts. Organic and many foreign markets prohibit GE products and even a single event of Transgenic Contamination can and has resulted in significant economic harm when the contaminated crops are rejected by buyers.
15. Transgenic contamination can and does occur as a result of cross-pollination, co-mingling of conventional and GE seeds, accidental transfer by animals or weather events, and other mechanisms. Transgenic contamination results in GE crops growing where they are not intended....
16. Transgenic contamination prevents farmers and the public from having the fundamental right to choose whether or not to grow crops that are free from GE....
18. There are no known or proven scientific methodologies or procedures to recall GE Organisms or remediate/decontaminate the Environment from any damages once GE Organisms are released into the Environment and contamination has occurred.

Ordinance, ECF No. 71–4, PageID # s 1409–10.

The stated purposes of the Ordinance are:

1. to protect Maui County's Environment and Public Trust

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2 cases
  • Atay v. Cnty. of Maui
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 18, 2016
    ...(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 "publi......
  • N.K. Collins, LLC v. William Grant & Sons, Inc.
    • United States
    • U.S. District Court — District of Hawaii
    • July 17, 2020
    ...of state law, the district court may, in its discretion, certify the issue to the state supreme court. Robert Ito Farm, Inc. v. Cty. of Maui, 111 F. Supp. 3d 1088, 1107–08 (D. Haw. 2015), aff'd sub nom. Atay v. Cty. of Maui, 842 F.3d 688 (9th Cir. 2016). "When the law at issue is reasonably......

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