                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SYNGENTA SEEDS, INC., a Delaware                 No.   14-16833
corporation; SYNGENTA HAWAII, LLC;
PIONEER HI-BRED INTERNATIONAL,                   D.C. No. 1:14-cv-00014-BMK
INC., an Iowa corporation;
AGRIGENETICS, INC., a Delaware
corporation; BASF PLANT SCIENCE LP,              MEMORANDUM*
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.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
SYNGENTA SEEDS, INC., a Delaware          No.    14-16848
corporation; SYNGENTA HAWAII, LLC;
PIONEER HI-BRED INTERNATIONAL,            D.C. No. 1:14-cv-00014-BMK
INC., an Iowa corporation;
AGRIGENETICS, INC., a Delaware
corporation; BASF PLANT SCIENCE LP,
a Delaware limited partnership,

          Plaintiffs-Appellees,

v.

COUNTY OF KAUAI,

          Defendant,

and

KA MAKANI HO’OPONO; CENTER
FOR FOOD SAFETY; PESTICIDE
ACTION NETWORK NORTH
AMERICA; SURFRIDER
FOUNDATION,

          Intervenor-Defendants-
          Appellants.


               Appeal from the United States District Court
                        for the District of Hawaii
               Barry M. Kurren, Magistrate Judge, Presiding

                   Argued and Submitted June 15, 2016
                           Honolulu, Hawaii




                                    2
Before: THOMAS, Chief Judge, and CALLAHAN and MURGUIA, Circuit
Judges.

      In this action, Plaintiffs-Appellees challenge Kauai County Ordinance 960,

which regulates pesticides and genetically engineered (GE) plants. The district

court granted summary judgment in Plaintiffs’ favor, finding that Ordinance 960 is

impliedly preempted by Hawaii laws addressing pesticides and potentially harmful

plants. Defendant the County of Kauai (County) and Intervenors Ka Makani

Ho’opono, Center for Food Safety, Pesticide Action Network North America, and

Surfrider Foundation (collectively, Defendants) appealed.

      Our concurrently filed opinion in Syngenta v. County of Kauai, Nos. 14-

16833, 14-16848, addresses and decides all issues on appeal except for one:

whether Ordinance 960's genetically modified organism (GMO)1 reporting

provision is impliedly preempted by state law. The district court held that it was.

We affirm.

                                          I.

      The purpose of Ordinance 960 “is to establish provisions to inform the

public, and protect the public from any direct, indirect, or cumulative negative

impacts on the health and natural environment of the people and place of the


      1
            The terms “GE plant,” “GE crop,” and “GMO” are used
interchangeably.
                                          3
County . . . by governing the use of pesticides and genetically modified

organisms.” Kauai County Code (KCC) § 22-23.2. The Ordinance’s GMO

notification provision requires commercial agricultural entities (CAEs) “that

intentionally or knowingly possess any genetically modified organism” to submit

and post online annual reports to the County Office of Economic Development

(OED) disclosing the growing of GMOs. KCC § 22-23.4(b). The reports must

“include a general description of each genetically modified organism . . . , a

general description of the geographic location . . . and dates that each genetically

modified organism was first introduced to the land in question.” KCC § 22-

23.4(b)(2).

      A.      Ordinance 960's reporting requirement is impliedly preempted by
              state law.

      As set forth more fully in our concurrently issued opinion in Atay v. County

of Maui, Nos. 15-16466, 15-16552, Hawaii courts apply a “‘comprehensive

statutory scheme’ test” to decide field-preemption claims under HRS § 46-1.5(13),

such as that made by Appellees here. Under this test, a local law is preempted if “it

covers the same subject matter embraced within a comprehensive state statutory

scheme disclosing an express or implied intent to be exclusive and uniform

throughout the state.” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1209



                                           4
(Haw. 1994). Courts frequently treat this test as involving several overlapping

elements, including showings that (1) the state and local laws address the same

subject matter; (2) the state law comprehensively regulates that subject matter; and

(3) the legislature intended the state law to be uniform and exclusive. Ultimately,

however, 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.” Pac. Int’l Servs. Corp. v. Hurip, 873 P.2d 88, 94

(Haw. 1994) (internal quotation marks omitted).

      The Hawaii legislature has set forth a comprehensive, uniform, and

exclusive statutory scheme to address the threat posed by potentially harmful

plants—including GE crops—and has delegated authority to the Hawaii

Department of Agriculture (DOA) to enact rules to that end. See, e.g., HRS §§

141-2, 141-3, 150-22, 150A-6.1(b), (c), (d), 152-3, 194-2(a), 194-3, 150-27(a)(2);

HAR §§ 4-72-6, 4-72-9–4-72-12.

      First, as more fully laid out in Atay, the scheme comprehensively regulates

potentially harmful plants by governing their importation, sale, transportation,

control, and eradication. The scheme also addresses research and propagation of

potentially harmful plants, HRS § 150A-6.1(d), and areas within the State where

restricted plants may not be introduced, id. § 152-3. While the DOA has not


                                            5
promulgated rules specifically regulating concerns associated with GE crops, such

as genetic contamination of conventional crops and wild plant species, the State

has laws to combat any such crops should they prove “detrimental or potentially

harmful to agriculture, horticulture, the environment, . . . or public health.” Id. §

150A-6.1(b).

      Second, we find that the statutory scheme for potentially harmful plants

discloses a clear inference that the legislature intended for the State’s regulation of

potentially harmful plants to be exclusive of local supplementation.

      We find preemptive intent “apparent from the pervasiveness of the . . .

statutory scheme.” In re Application of Anamizu, 481 P.2d 116, 119 (Haw. 1971).

The legislature’s broad conferral to the DOA of power to regulate plant pests and

invasive species also supports an inference of preemptive intent. Similarly, in

Citizens Utilities Co. v. County of Kauai, the Hawaii Supreme Court found a

county law regulating the height of utility poles was preempted by state law that

“expressly authoriz[ed a state agency] to supervise and regulate public utilities,”

even though the statute did not address the specific subject of pole heights. 814

P.2d 398, 400 (Haw. 1991). As explained in Atay, several specific provisions in

the State’s statutory scheme further evidence an intent for the State’s regulatory




                                           6
oversight of potentially harmful plants to be uniform and exclusive. See HRS §§

141-3, 194-3, 150A-6.1.

      The remaining implied preemption element is whether Ordinance 960's

GMO reporting requirement addresses the same subject matter as the State’s

comprehensive and exclusive statutory scheme. It is true that the statutory scheme

does not specifically address GE crops, which is the focus of Ordinance 960's

reporting requirement. However, as we explain in Atay, the fact that neither a state

statute nor DOA rule mentions GE crops specifically does not foreclose a finding

of implied preemption. The same authority supporting DOA’s restrictions on

several non-GE commercial crops, see HAR §§ 4-72-6, 4-72-9–4-72-12, also gives

DOA authority to regulate GE crops as potentially harmful plants due to risks such

as genetic contamination of non-GE crops.

      Ordinance 960's GMO reporting requirement also targets potentially harmful

plants. The requirement is in furtherance of the County’s goal to “protect the

public from any direct, indirect, or cumulative negative impacts on the health and

natural environment of the people and place of the County . . . by governing the

use of . . . genetically modified organisms.” KCC § 22-23.2. In other words,

Ordinance 960 provides for local oversight of plants the County deems

harmful—the same oversight committed by the State legislature to DOA.


                                          7
Accordingly, the State’s statutory scheme and Ordinance 960 address the same

subject matter.

      Having determined that the legislature intended to create an exclusive,

uniform, and comprehensive state statutory scheme for potentially harmful plants,

we hold that Ordinance 960's GMO reporting requirement impermissibly intrudes

into an area of exclusive State regulation and is beyond the County’s authority

under HRS § 46-1.5(13) and preempted.

                                         II.

      The district court’s summary judgment in favor of Appellees is

AFFIRMED.




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