Third Time Is Not a Charm – Maui’s County GMO Ordinance Found to Be Preempted

Photo by Edwin Remsberg

Photo by Edwin Remsberg

This post should not be construed as legal advice

            On June 30, 2015, a Federal district judge in Hawaii ruled that Maui’s county genetically modified organism (GMO) ordinance was preempted by Federal and state law.  For those of you keeping score at home, this marks the third county in Hawaii whose GMO ordinance was found to be preempted.  I realize Billy Joe Shaver did not say this first, but he did put it into a good song.  To paraphrase Shaver, “If at first you don’t succeed, then try and try again . . .”

Billy Joe Shaver at Dosey Does in The Woodlands, Texas

Hawaii counties really do fit that old adage because they keep trying to place restrictions on GMO production in their counties, but they never do succeed.

            I have posted on previous rulings involving Hawaii County’s ban and Kauai County’s ban.  Maui County’s ordinance made it illegal to grow, raise, or test a GMO and provided fines ranging from $10,000 to $50,000 depending on the number of violations and up to a year in prison for violating the ordinance (Robert Ito Farm, 2015).  The ordinance was passed on Nov. 14, 2015.

Why Was It Preempted?

            First, the Federal district court found that the ordinance was preempted by a Federal law, the Plant Protection Act, which prohibits states, counties, or cities from regulating the movement in interstate commerce of any plant pest or noxious weed.  The Maui ordinance inherently considered GMOs to be noxious weeds and plant pests, according to the judge.  Because Federal law expressly took away any ability for the county to regulate GMOs this way, the county’s ordinance was preempted under Federal law.

            The judge found the ordinance to be preempted also under state law.  As discussed in the two earlier posts, Hawaii state law gives authority to regulate the introduction, transportation, and propagation of plants to the Hawaii Department of Agriculture.  The department also has the authority to designate restricted plants and control noxious weeds.  These statutes showed that the state had not granted the county the authority to regulate this area and preempted the ordinance under state law.

Take-Away Points

Photo by Edwin Remsberg

Photo by Edwin Remsberg

            Hawaii has five counties and we have currently seen three county GMO bans overturned due to preemption (remember that earlier Billy Joe quote).  We have not seen how the 9th Circuit Court of Appeals will handle these decisions on appeal, so stay tuned.  If you are new to this and wonder why Hawaii is the hotbed of GMO ordinances, the state currently is home to test plots for many major seed companies. 

            As I have written earlier, but still bearing truth in this decision:  Maryland and almost all states have similar laws found to preempt the Hawaiian county ordinances.  This does not guarantee a similar result in Maryland, Delaware, or Virginia, but it does give us thoughts on the legal arguments which will be raised against similar bans around the country.  The more interesting issues in the Oregon case will be when the court decides the constitutional takings issue and whether producers have a takings claim when a county outright bans GMOs; stay tuned on that one.

            Finally, as many of you guessed, I enjoy posting on this topic because it allows me to post photos of Hawaii.

References

Hawai’i Floriculture & Nursery Ass’n v. County of Hawaii, Civ. No. 14-00267, 2014 WL 6685817 (D. Haw. Nov. 26, 2014).

Robert Ito Farm, Inc. v. County of Maui, Civ. No. 14-00582 (D. Haw. June 30, 2015).

Syngenta Seeds, Inc. v. County of Kauai, Civ. No. 14-00014, 2014 WL 4216022 (D. Haw. Aug. 25, 2014).

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