Alika Atay v. County of Maui
842 F.3d 688
| 9th Cir. | 2016Background
- In 2014 Maui County voters adopted an ordinance (a "Temporary Moratorium") banning cultivation and testing of genetically engineered (GE) plants within the county, with civil and criminal penalties and narrow exceptions.
- GE seed companies (e.g., Monsanto, Agrigenetics) and local farmers/businesses sued in federal court seeking to enjoin enforcement; proponents of the initiative (SHAKA) intervened and appealed adverse rulings.
- APHIS (USDA) regulates GE plants under the Plant Protection Act (PPA); many GE plants are treated as "regulated articles" or plant pests until APHIS affirmatively deregulates them via petition.
- The district court held the Maui ordinance unenforceable as expressly and impliedly preempted by federal law (PPA), impliedly preempted by Hawaii state law, and beyond county authority; the Ninth Circuit affirmed in part.
- The Ninth Circuit concluded: (1) the ordinance is expressly preempted by the PPA insofar as it bans GE plants that APHIS regulates as plant pests; (2) the PPA does not impliedly preempt the ordinance as applied to APHIS-deregulated (commercialized) GE crops; but (3) Hawaii state law’s comprehensive scheme for regulating harmful plants impliedly preempts the ordinance’s ban on federally deregulated GE crops.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to appeal/intervene | SHAKA: proponents have standing to defend ordinance | GE Parties: proponents lack independent Article III standing (Hollingsworth) | SHAKA proponents (individuals) established injury-in-fact (economic, environmental, recreational) and have standing |
| Remand & Rule 56(d) discovery | SHAKA: Atay action should be remanded to state court; needed discovery before summary judgment | GE Parties/County: federal court jurisdiction proper; preemption is legal issue not requiring additional discovery | Ninth Circuit affirmed denial of remand and denial of Rule 56(d) discovery |
| Federal express preemption under PPA §7756(b) | GE Parties: ordinance conflicts with PPA and APHIS regulation of GE plants as plant pests | SHAKA: ordinance addresses non-PPA concerns (contamination, pesticides) and so is outside PPA preemption | Ordinance is expressly preempted as to GE plants APHIS regulates as plant pests/regulated articles (PPA preempts local laws that regulate movement/release to prevent dissemination) |
| Federal implied preemption as to deregulated GE crops | GE Parties: ordinance frustrates PPA objectives and thus is impliedly preempted for deregulated/commercialized GE crops | SHAKA: PPA’s express clause implies Congress left regulation of deregulated crops to states/localities; no conflict exists | PPA does not impliedly preempt county ban on APHIS-deregulated GE crops; states/counties retain land-use/health authority over such crops |
| State (Hawaii) implied field preemption over deregulated GE crops | GE Parties: Hawaii law governing pests/noxious weeds is comprehensive and precludes county bans | SHAKA: counties retain police power and may regulate local agriculture/ecosystems | Hawaii law’s comprehensive statutory scheme (HRS chs. 141, 150A, 152, 194, etc.) implies the State intended exclusive, uniform regulation of potentially harmful plants; Maui ordinance preempted as to federally deregulated GE crops |
Key Cases Cited
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (injury from transgenic contamination can establish standing and relevant to injunctive relief analysis)
- Center for Food Safety v. Vilsack, 718 F.3d 829 (9th Cir. 2013) (explains APHIS regulation of GE organisms as plant pests and effect of deregulation)
- Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (limits standing of initiative proponents to defend laws absent independent injury)
- Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (Article III standing principles: concreteness, imminence, traceability, redressability)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000) (recreational-use allegations can satisfy injury-in-fact)
- Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (distinction between express and implied preemption analysis)
- Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (obstacle preemption requires showing state law impedes federal objectives)
- Wyeth v. Levine, 555 U.S. 555 (2009) (agency pronouncements may preempt only if they carry force of law; presumption against preemption in traditional state fields)