SYNGENTA SEEDS, INC., a Delaware corporation; Syngenta Hawaii, LLC; Pioneer Hi-Bred International, Inc., an Iowa Corporation; Agrigenetics, Inc., a Delaware corporation; BASF Plant Science LP, a Delaware limited partnership, Plaintiffs-Appellees, v. COUNTY OF KAUAI, Defendant-Appellant, and Ka Makani Ho‘opono; Center for Food Safety; Pesticide Action Network North America; Surfrider Foundation, Intervenor-Defendants-Appellants.
No. 14-16833, No. 14-16848
United States Court of Appeals, Ninth Circuit.
November 18, 2016
842 F.3d 669
No. 14-16833, No. 14-16848
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 15, 2016, Honolulu, Hawaii
Filed November 18, 2016
Paul H. Achitoff (argued), Earthjustice, Honolulu, Hawaii; Sylvia Shih-Yau Wu and George A. Kimbrell, Center for Food Safety, San Francisco, California; for Intervenor-Defendants-Appellants.
Margery S. Bronster (argued), Donna C. Marron, and Rex Y. Fujichaku, Bronster Fujichaku Robbins, Honolulu, Hawaii; Christopher Landau (argued), Kirkland & Ellis LLP, Washington, D.C.; Clair Wong Black and Paul Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii; for Plaintiffs-Appellees.
Before: SIDNEY R. THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
OPINION
CALLAHAN, Circuit Judge:
Kauai County passed Ordinance 960 to regulate pesticides and genetically engi
I.
A. Plaintiffs’ farming operations on Kauai
Plaintiffs-Appellees Syngenta Seeds, Inc., Syngenta Hawaii, LLC, Pioneer Hi-Bred International, Inc., Agrigenetics, Inc., and BASF Plant Science LPs are companies that supply seed for GE plants. Plaintiffs grow a variety of GE seed crops on Kauai, including corn, soybeans, canola, and rice. As further explained in our concurrently filed opinion in Atay v. County of Maui, No. 15-16466, such GE crops have numerous important uses and play a major role in our nation‘s food supply. However, GE crops also present several well-documented economic and environmental risks.
This case arises primarily from concern about Plaintiffs’ use of insecticides, herbicides, and fungicides (collectively pesticides) in their farming operations on Kauai. They use both general use pesticides (GUPs), which under federal and state law may be applied by anyone in accordance with label instructions, and re1stricted use pesticides (RUPs), which may only be applied by applicators certified by the State or persons under their direct supervision. See
Kauai residents have reported experiencing medical symptoms due to contact with pesticides applied on Plaintiffs’ farms. Additionally, a University of Hawaii study detected pesticides in indoor and outdoor air samples collected at a Kauai middle school, albeit at concentrations “well below health concern exposure limits or applicable screening levels.”
B. Kauai County Ordinance 960
In 2013, the Kauai County Council passed Ordinance 960 in order to “inform the public, and protect the public from any . . . negative impacts on the health and natural environment of the people and place of the County” associated with commercial farming operations, including the use of pesticides. Kauai County Code (KCC) § 22-23.2.2 Relevant here, the Ordinance imposes several requirements on “commercial agricultural entities” (CAEs)
in connection with the application of RUPs in Kauai.3
The Ordinance‘s notification provisions require CAEs to make notifications before and after applying RUPs. Id. § 22-23.4(a). Specifically, the “worker protection” provision requires CAEs to post warning signs that comply with U.S. Environmental Protection Agency guidelines twenty-four hours prior to the application of a pesticide, during application, and after application for the “restricted-entry period” established by the EPA. Id. § 22-23.4(a)(1). The “Good Neighbor” provision requires CAEs to send weekly “Good Neighbor Courtesy Notices” to interested beekeepers and people who own or occupy property within 1,500 feet of the property where the pesticide will be applied. The notices must address the pesticide to be used, its active ingredient, and the date, time, and field number of its use. Id. § 22-23.4(a)(2). Following the application of RUPs, the Ordinance also requires CAEs to submit to Kauai‘s Office of Economic Development and post online weekly “public disclosure reports” “compiling the actual application of all pesticides during the prior week.” Id. § 22-23.4(a)(3). These reports must detail the date and time of application, the field number and total acreage to which the pesticide was applied, the pesticide‘s trade name, EPA registration number, and active ingredient, the gallons or pounds of the pesticide used, and the temperature, wind direction, and wind speed at the time of application, Id.
Finally, Ordinance 960 requires the County to complete an Environmental and Public Health Impact Study (EPHIS) to address “environmental and public health questions related to large-scale commercial agricultural entities utilizing pesticides and genetically modified organisms.” Id. § 22-23.6. The EPHIS may recommend “possible actions the County may take in order to address any significant effects, public health impacts, or both.” Id. § 22-23.6.
“[A]ny person, firm, or corporation” violating Ordinance 960 is subject to a civil fine of $10,000 to $25,000 per day, per violation. Id. § 22-23.7(a). Additionally, violators are guilty of a misdemeanor punishable by a fine of up to $2,000 or a year imprisonment for each offense. Id. § 22-23.7(b).
After the County Council passed Ordinance 960, the Mayor of Kauai vetoed it. The Mayor explained that he “agree[d] fully with the general intent of [the] bill,” including the pesticide notification and EPHIS provisions. However, he did not support the buffer-zone provision and, citing a legal opinion by the County Attorney, concluded “that Kauai does not currently have the legal authority to enact most of what is contained” in the bill. On
C. Procedural History
On January 10, 2014, Plaintiffs sued the County of Kauai in district court challenging Ordinance 960. As subsequently amended, Plaintiffs’ complaint asserted thirteen claims for relief and sought a declaratory judgment that the Ordinance is invalid under federal, state, and county law, and an injunction against its enforcement. Relevant here, the first claim asserted that state law impliedly preempts the Ordinance‘s pesticide provisions. A coalition of Ka Makani Ho‘opono, the Center for Food Safety, the Pesticide Action Network North America, and the Surfrider Foundation intervened on behalf of the County.
On August 25, 2014, the district court granted in part and denied in part the cross-motions for summary judgment. Syngenta Seeds, Inc. v. Cty. of Kauai, No. CIV. 14-00014 BMK, 2014 WL 4216022 (D. Haw. Aug. 25, 2014). While emphasizing that its decision “in no way diminishes the health and environmental concerns of the people of Kauai,” the court concluded that Ordinance 960‘s pesticide provisions are impliedly preempted by state law. Id. at *1. The court acknowledged that the County has authority under state law to regulate agricultural activities, id. at *3-4, but found the pesticide provisions preempted because they address the same subject matter regulated by a comprehensive statutory scheme that the Hawaii legislature intended to be uniform and exclusive. Id. at *7-9. The district court declined to certify the implied preemption question to the Hawaii Supreme Court. Id. at *15. The County and Defendant-Intervenors (collectively Defendants) timely appealed. We have jurisdiction under
II.
On appeal, the County and Defendant-Intervenors contend that the district court erred in finding Ordinance 960‘s pesticides provisions impliedly preempted by state law. They also argue that the district court erred in denying their motion to certify the implied preemption issue to the Hawaii Supreme Court and, alternatively, ask us to certify the issue. We review the district court‘s grant of summary judgment on preemption grounds de novo, Wolfe v. BNSF Ry. Co., 749 F.3d 859, 863 (9th Cir. 2014), and a decision not to certify a state-law question for abuse of discretion, Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th Cir. 2009).
A. Implied state preemption analysis under Hawaii law
The state preemption question before us stems from
Hawaii courts apply a “‘comprehensive statutory scheme’ test” to decide field-preemption claims under
The Hawaii Supreme Court has emphasized that 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.” Hurip, 873 P.2d at 94. Thus, even where a local law addresses a subject covered by a comprehensive and uniform state statutory scheme, the local law is not preempted where the state scheme does not evince the legislature‘s intent to be exclusive. Id. (finding that the legislature intended a state law only “to establish a minimum level of insurance protection“).
The Parties dispute how clear of a showing of legislative intent to preempt is required for a local law to be deemed invalid. Plaintiffs contend that, unlike federal law, there is no presumption against preemption under state law because Hawaii counties only have authority delegated to them by the State. Defendants contend that there is a presumption against state preemption of local laws, and thus the legislature‘s intent to preempt must be “clear” in order for a local law to fail. They argue that this presumption is particularly strong where, as here, a local government regulates land use or another area over which it traditionally has exercised control.
The Hawaii Supreme Court has not squarely addressed whether there is a presumption against state preemption. It is true that there is no presumption of dual sovereignty between the State and the counties, because counties, unlike states, lack inherent or residual authority. In re Application of Anamizu, 52 Haw. 550, 481 P.2d 116, 118 (1971). However, the Hawaii Supreme Court has presumed that a county‘s exercise of police power is within its delegated authority so long as the legislature did not “clearly intend[] to preempt the field of regulation.” Haw. Gov‘t Employees’ Ass‘n v. Maui, 59 Haw. 65, 576 P.2d 1029, 1038 (1978). Thus, where a county‘s exercise of police power is at issue, the showing of legislative intent necessary for state law to preempt local law under Hawaii‘s preemption analysis is similar to, if perhaps not quite as demanding as, the showing required for purposes of federal preemption, a “‘clear and manifest purpose’ to pre-empt local authority.” See Wisc. Public Intervenor v. Mortier, 501 U.S. 597, 607, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991).
The Parties also dispute whether the Hawaii Constitution‘s conservation clause alters the preemption analysis where local laws aimed at conserving and protecting the environment are at issue. The County contends that Article XI, § 1‘s directive
We are not persuaded. Hawaii law is clear that counties lack inherent authority under the Hawaii Constitution. Haw. Gov‘t Employees’ Ass‘n, 576 P.2d at 1038; In re Application of Anamizu, 481 P.2d at 118. It follows that counties have no power to conserve the public trust unless the State has delegated to them the authority to do so. As noted, under
B. The Hawaii Pesticides Law preempts Ordinance 960‘s pesticide provisions.
Under Hawaii‘s comprehensive statutory scheme test, the question presented is whether Ordinance 960‘s pesticides provisions cover the same subject matter as state law that creates a comprehensive regulatory scheme and discloses clear legislative intent to be uniform and exclusive of supplemental local regulation.
1. Ordinance 960‘s pesticide provisions and the Hawaii Pesticides Law address the same subject matter.
Ordinance 960 imposes pesticide notification requirements and mandates “pesticide buffer zones.” KCC § 22-23.5(a). As detailed below, the Hawaii Pesticides Law and its implementing rules also regulate pesticides, including by imposing notification requirements and conditions of use, such as locations of permissible use. See
Part III of the Hawaii Pesticides Law regulates the use of pesticides, including where pesticides may be applied.
This list of prohibited acts in Part III is not exhaustive. Rather, section 149A-32.5 vests the chairperson of the State‘s Board of Agriculture with the authority to “suspend, cancel, or restrict the use of certain pesticides or specific uses of certain pesticides when the usage is determined to have unreasonable adverse effects on the
Pursuant to this authority, the Department of Agriculture has enacted additional rules addressing pesticide use, including locations of use. A Department of Agriculture rule requires “directions for use” on labels to address, among other things, “[r]equired intervals between application and harvest of food or feed crops,” “rotational crop restrictions,” and “[w]arnings as required against use on certain crops, animals, objects, or in or adjacent to certain areas.” HAR § 4-66-23(9)(A), (C).
As these provisions show, Hawaii law addresses the same subject matter as Ordinance 960‘s buffer-zone provision: permissible areas of pesticide application.
The Hawaii Pesticides Law also addresses the specific subject of notification and record-keeping requirements. For example, the law establishes notification and record-keeping requirements in connection with the sale of pesticides.
State law also establishes notification and warning requirements in connection with the application of pesticides. In addition to requiring “warnings and precautionary statements” on labels, see HAR §§ 4-66-17, 4-66-19, a Department of Agriculture rule requires that “[c]ommercial applicators applying any pesticide in agricultural operations must . . . furnish a written record . . . to the agricultural employer before the pesticide is applied,” id. § 4-66-62(c).6 The Department of Agriculture has also enacted reporting and approval requirements before RUPs may be applied by aircraft. Id. § 4-66-64.
State law addresses post-application record keeping as well. The legislature delegated to the Department of Agriculture the authority to “establish, as necessary, record keeping requirements for pesticide use by applicators.”
As these provisions show, Hawaii law addresses the same subject matter as Ordinance 960‘s pesticide notification provisions: warnings regarding the application of RUPs.
2. The State‘s scheme for the regulation of pesticides is comprehensive.
Defendants argue that even if Hawaii law and Ordinance 960 address the same subject matter, the state law‘s treatment of pesticides is not comprehensive. They contend that the state requirements are “procedural and remedial,” while Ordinance 960 is “substantive and prophylactic.”
Even if regulatory fields may be parsed so finely in determining whether their occupation by the State is comprehensive, Defendants’ argument fails. State law imposes “substantive and prophylactic” measures. For example, state law regulates a pesticide‘s effects on human health and the environment through labeling and licensing requirements. See, e.g.,
More generally, the state statutory scheme‘s breadth of treatment of pesticides demonstrates its comprehensiveness. The Hawaii Pesticides Law and its implementing rules address the entire life cycle of pesticides, including research/experimentation, transportation, storage, sale, use, and disposal. See, e.g.,
We find that the state‘s statutory scheme for pesticides is comprehensive.
3. The legislature clearly intended for the State‘s regulation of pesticides to be uniform and exclusive.
Finally, it is clear that the Hawaii legislature intended for the State‘s regulation of pesticides to be uniform and exclusive of additional, local rules.
The pervasiveness of the statutory scheme, which regulates in detail the full life cycle of pesticides, creates a reasonable inference that the legislature left no room for counties to impose further regulations. See In re Application of Anamizu, 481 P.2d at 119 (finding legislative intent to preempt “apparent from the pervasiveness of the . . . statutory scheme“). The Hawaii Pesticides Law‘s pervasiveness differentiates the law from the federal pesticides law, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which the Supreme Court found did not preempt local laws in Mortier. In Mortier, the Supreme Court observed that FIFRA “leaves substantial portions of the field vacant, [including] an affirmative permit scheme for the actual use of pesticides.” 501 U.S. at 613. By contrast, the Hawaii Pesticides Law establishes a permit scheme for actual use and does not leave vacant any other substantial part of the field of pesticides regulation.
Moreover, the Hawaii legislature stated its intention for the Hawaii Pesticides Law to be uniform in
The Hawaii legislature‘s goal of establishing a uniform system of pesticide control and its delegation, in furtherance of this goal, of rulemaking and licensing authority to the Department of Agriculture clearly evince an intent to preempt local regulation. As the Hawaii Supreme Court has explained, such a state statutory scheme cannot reasonably be interpreted to allow for supplemental local regulation because differing local laws would defeat the goal of uniformity. For example, in In re Application of Anamizu, the Hawaii Supreme Court concluded that a city ordinance regulating contractors was
Like the law at issue in Application of Anamizu, the Hawaii Pesticides Law creates a comprehensive statutory scheme, commits rulemaking and licensing authority to carry out the scheme to a state agency, and discloses a goal of uniformity. Moreover, the statute and the Department of Agriculture‘s implementing rules address the specific subjects addressed by Ordinance 960—pesticide notification requirements and conditions of permissible use, including locations of use. In these circumstances, interpreting the Hawaii Pesticides Law to allow supplemental local regulations would impermissibly undermine the legislature‘s express goal of uniformity.
We note that the Hawaii Pesticides Law does allow for local variations in the regulation of pesticides. However, further evidencing an intent that the State‘s control be exclusive, the legislature directs the Department of Agriculture to address the need for any local variations. For example,
Our conclusion that the legislature intended for the Hawaii Pesticides Law to be uniform and exclusive of state control is not undermined by the DOA‘s power “to cooperate with and enter into agreements with any agency of the State, the federal government, or any other agency” in carrying out the law. Id.
Nor do Intervenors’ arguments based on Hawaii‘s litigating position in Mortier and legislative inaction undermine our interpretation of the Hawaii Pesticides Law‘s
preemptive effect. Intervenors argue that an amicus brief filed by Hawaii in Mortier evidences that the State never intended to prevent counties from regulating pesticides. See Mortier, No. 89-1905, 1991 WL 11007857 (Appellate Br.) (Feb. 28, 1991). The litigating position of the Hawaii attorney general in Mortier, however, is of little or no relevance to the preemptive effect of the Hawaii Pesticides Law. The brief was joined by ten other states and did not interpret the preemptive effect of Hawaii law. Rather, the brief argued that FIFRA leaves room for state and local regulation of pesticides, a point that is not disputed.
Intervenors also argue that Hawaii‘s legislative inaction following Mortier demonstrates the absence of legislative intent to preempt local regulation of pesticides. Following the Supreme Court‘s decision in Mortier, bills to preempt local pesticide regulation were introduced in the Hawaii House and Senate. Intervenors contend that the fact that the Hawaii legislature did not pass the bills, unlike the legislatures of many other states, undermines any inference of preemptive intent from existing law.
In Hurip, the Hawaii Supreme Court relied on post-enactment legislative history in assessing legislative intent. 873 P.2d at 96-97. However, Hurip relied on the legislative history of an amendment to a state law, not on post-enactment legislative inaction. The U.S. Supreme Court and the Hawaii Supreme Court have found the second type of evidence generally “lacks persuasive significance” because “several equally tenable inferences may be drawn from such inaction.” Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994); Richardson, 868 P.2d at 1211 n.25 (finding a “long history of
In sum, we find that the Hawaii Pesticides Law comprehensively regulates pesticides and creates a clear inference of legislative intent to preempt local regulations of pesticides. Accordingly, applying Hawaii‘s comprehensive statutory scheme test, we hold that Ordinance 960‘s pesticide provisions are impliedly preempted by Hawaii law and beyond the County‘s power under
C. The district court did not abuse its discretion in denying Defendants’ motion to certify the preemption issues to the Hawaii Supreme Court.
Defendants argue that the district court erred in declining to certify the state implied preemption questions presented to the Hawaii Supreme Court. Alternatively, Defendants ask us to certify the implied preemption questions.
We find that the district court did not abuse its discretion in denying Defendants’ motion to certify. We similarly find that while the Hawaii Supreme Court has not applied its preemption test to the specific laws at issue, certification is unnecessary because the State‘s test for implied state preemption is “rather well-defined.” Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1263 n.14 (9th Cir. 1983); see also Pai ‘Ohana v. United States, 875 F.Supp. 680, 700 (D. Haw. 1995), aff‘d sub nom. Ohana v. United States, 76 F.3d 280 (9th Cir. 1996) (“[W]here there is sufficient state law to enable this court to make an informed decision on [the] issues certification is inappropriate.“) (internal quotation marks omitted).
III.
We affirm the district court‘s conclusion that the Hawaii Pesticides Law impliedly preempts Ordinance 960‘s pesticide provisions. We affirm the district court‘s conclusion that Hawaii law impliedly preempts Ordinance 960‘s GE crop reporting provision in a concurrently filed memorandum disposition. We also affirm the district court‘s denial of Defendants’ motion to certify.
AFFIRMED.
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,