Ninth Circuit Digs In on Hawaii GMO Rules

by Nicholas Fillmore, Court House News, June 17, 2016 

     HONOLULU (CN) — Three counties in Hawaii that banned genetically modified crops and pesticides urged the Ninth Circuit to rule against opponents in the agricultural industry.

     Kauai, the Big Island and Maui each adopted tough regulations against engineered crops in 2013, but federal judges struck down all three as pre-empted by state and federal law.

     The first of four separate hearings on the issue Wednesday focused on a challenge that Syngenta Seeds brought over Kauai's ban against pesticides near schools and hospitals.

     Kauai's attorney, David Minikin, noted that U.S. District Judge Barry Kurren did not see federal pre-emption as an issue, so he should have sought guidance on Ordinance 960 from the Hawaii State Supreme Court.

     In addition to banning pesticides, Ordinance 960 requires disclosure of pesticide use and seed cultivation.

     Paul Achitoff, an attorney with Earthjustice, disputed that the reporting requirement conflicts with state policy. Achitoff appeared on behalf of Kamika Ho'opono, Surfrider Foundation and the Pesticide Action Network of North America.

     Kirkland & Ellis attorney Chris Landau meanwhile urged the court to affirm for biotech companies Syngenta and Monsanto.

     Landau objected to "Draconian penalties" levied against violators of 960. "Up to a year in jail and a $50,000 fine," he said, adding that the reporting requirement could make companies vulnerable to vandalism and espionage.

     Sitting on a three-person panel, U.S. Circuit Judge Mary Murguia queried Landau as to whether this supplemented or intersected with existing state laws.

     "The fact that the state doesn't have these requirements is a pretty good indication that the state doesn't feel it's appropriate," Landau said.

     Achitoff challenged this notion in the second hearing, Hawaii Papaya Industry Association v. County of Hawaii. Where the state has "no statutory scheme" regarding the regulation of GMOs, Achitoff said, Hawaii county is within its right to use its broad police powers.

     Achitoff also highlighted the state's hands-off attitude toward previous legislation. "Eight years ago they passed laws against [transgenic] coffee and taro," the attorney said. "The State Department of Agriculture didn't object. Nobody objected. The state has never objected."

     On his turn, Landau accused Achitoff of "muddying the waters," saying there is only one test to determine whether a state law pre-empts a county law: whether it covers the same subject matter.

     Andrew Kimbrel, executive director for Center for Food Safety, told the court that GMOs lie outside the scope of federal regulation since they are neither pests, nor harmful weeds. As such they are open to county regulation, Kimbrel said.

     In the third hearing, Robert Ito Farm v. County of Maui, Judge Consuelo Callahan grilled Earthjustice attorney Summer Kupao-Odu on a number of procedural issues.

     Kupao-Odu represents the MOM Hui, Molokai Mahi Ai, Jerry Ross and the Center for Food Safety.

     The trial court barred them from intervening, however, after finding their interests identical to those of an existing party called the Shaka Movement.

     Kupao-Odu complained that "the courthouse doors were shut" on her clients, but Callahan said "the judge doesn't have to let everyone in the world who wants to intervene."

     Kupao-Odu retorted that existing rules obligate the judge to consider whether existing parties have adequate representation.

     Explaining how her client's interests diverge from Shaka's, Kupao-Odu cited the personal interests of children and others on Molokai, a rural island community whose inhabitants have the more "profound experience" of living and working next to 2,700 acres of GMO farmland versus Maui's 700 acres.

     Callahan warned that matter stands and falls on issues of federal and state pre-emption, "not the things you're listing that have an emotional tenor to [it]."

     Chief U.S. Circuit Judge Sydney Thomas took a more moderate tack.

     "I appreciate you have different harms, he said. "How would your legal argument be different?"

     Digging in her heels, Kupao-Odu said her clients had already made their argument and met the legal burden of proof.

     Callahan bristled at this. "Most of us didn't just fall off the turnip truck," she said. "Not anyone can jump in as soon as the case isn't going well."

     Citing a pending motion to dismiss Shaka for lack of standing, Kupao-Odu argued that there could be no one to defend Maui's ballot initiative against genetically engineered farming.

     Shaka's standing faced scrutiny in the fourth case, Alika Atay v. County of Maui.

     Bernie Bays, an attorney with Bays, Lung, Rose & Holma, argued that the county's regulation of GMOs represents a valid exercise of broad police powers to protect the health life and property of its citizens against an unwieldy industry.

     As the only initiative ever added to the county charter since 1983, moreover, it "underscores the importance of this ordinance to the people of Maui," Bays said.

     Monsanto tapped former state Attorney General Margery Bronster to arguing on its behalf. She said the opposing argument seems to be, "If the legislature did not say the county couldn't do it, they can."

     "And that simply disregards the way our state government is set up," Bronster argued. "Counties are only allowed to do what is specifically delegated to the counties. ... We have an incredibly centralized state government. ... Counties are supposed to advise the state."

     On rebuttal, Bays said the job of the county is to regulate land use within the county and to regulate the harm. The state has not regulated GMO crops, so it has been left to the counties, he said.

     Bays also argued that a county-by-county approach to regulating GE crops makes a great deal of sense where counties are separated by great stretches of water and have different land use goals and objectives.

     With regard to express versus implied pre-emption, Bays said the Supreme Court ruled that, where there is an express pre-emption provision in the law, that defines congressional intent. "Congress does not hide elephants in a mouse hole," he said.

     After more than three hours of testimony, Judge Thomas thanked the audience and thanked the lawyers for their interesting arguments on issues of such importance.

     The Ninth Circuit is the biggest federal appeals court in the country, covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Mariana Islands.

     The implications of the court's ruling or rulings in this case will be vast.

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VIDEO: Ninth Circuit Oral Arguments In Hawaii Anti-GMO Cases