                                                                            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                           NOT FOR PUBLICATION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


HAWAI’I PAPAYA INDUSTRY                          No.   14-17538
ASSOCIATION; BIG ISLAND BANANA
GROWERS ASSOCIATION; HAWAI’I                     D.C. No. 1:14-cv-00267-BMK
CATTLEMEN’S COUNCIL, INC.;
PACIFIC FLORAL EXCHANGE, INC.;
BIOTECHNOLOGY INNOVATION                         MEMORANDUM**
ORGANIZATION;* RICHARD HA;
JASON MONIZ; GORDON INOUYE;
ERIC TANOUYE; HAWAI’I
FLORICULTURE AND NURSERY
ASSOCIATION,

              Plaintiffs-Appellees,

 v.

COUNTY OF HAWAII,

              Defendant-Appellant.


                   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

      *
             Appellee’s unopposed motion to amend the caption is granted.
       **
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: THOMAS, Chief Judge, and CALLAHAN and MURGUIA, Circuit
Judges.

      In this action, Plaintiffs-Appellees (collectively, the GE Parties) challenge

Hawaii County Ordinance 13-121, which regulates genetically engineered (GE)

plants. The district court granted summary judgment in Plaintiffs’ favor, holding

that Ordinance 13-121 is impliedly preempted under state law and expressly

preempted, in part, by federal law. Defendant-Appellant County of Hawaii

appealed. We affirm.1

                                           I.

      Our concurrently filed opinion in Atay v. County of Maui, Nos. 15-16466,

15-16552, sets forth in greater detail the legal basis that controls this decision.

Atay involves substantially similar facts in relevant part.

      The County of Hawaii’s (County) Ordinance bans “open air testing of

genetically engineered organisms of any kind” and “open air cultivation,

propagation, development, or testing of genetically engineered crops or plants.”

Haw. Cty. Code (HCC) §§ 14-130, 14-131. The purposes of the Ordinance are to


      1
             We also reject Appellant’s argument that we should certify the state
law issues presented to the Hawaii Supreme Court. As explained in our
concurrently filed opinion in Syngenta Seeds, Inc. v. County of Kauai, Nos.
14-16833, 14-16848, certification is not merited because the implied state
preemption analysis under Hawaii law is well-defined.
                                            2
prevent cross-pollination from GE plants to non-GE plants and to preserve Hawaii

Island’s vulnerable ecosystem “while promoting the cultural heritage of indigenous

agricultural practices.” HCC § 14-128.

       The GE Parties challenge the Ordinance on two grounds: (1) the Ordinance

is expressly preempted by the Plant Protection Act (PPA), 7 U.S.C. § 7756(b), in

its application to plants that the U.S. Animal and Plant Health Inspection Service

(APHIS) regulates as plant pests2; and (2) the Ordinance is fully preempted under

state law. For the reasons more fully set forth in Atay, we agree.

       A.     The Ordinance is expressly preempted by federal law.

       Under the PPA, “no State or political subdivision of a State may regulate the

movement in interstate commerce of any . . . plant, . . . plant pest, noxious weed, or

plant product in order to control . . . , eradicate . . ., or prevent the introduction or

dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a

regulation or order to prevent the dissemination of the . . . plant pest, or noxious


       2
             The district court rejected Appellees’ argument that the Ordinance is
preempted on federal implied preemption grounds. Appellees have waived that
argument by not raising it as an alternative ground for affirmance in their
answering brief on appeal. We therefore decline to reach the issue. See United
States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en banc).




                                             3
weed within the United States.” 7 U.S.C. § 7756(b)(1). The Ordinance is

therefore expressly preempted if three conditions are met: (1) the local law must

regulate “movement in interstate commerce,” (2) it must be intended to “control . .

. , eradicate . . . , or prevent the introduction or dissemination of a . . . plant pest, or

noxious weed,” and (3) APHIS must regulate the plant at issue as a plant pest or

noxious weed. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)

(Congress’ intent to preempt state and local law may be “explicitly stated in the

statute’s language or implicitly contained in its structure and purpose”) (internal

quotation marks omitted). Each condition is met here.

       For the same reasons set forth in Atay, the County of Hawaii’s Ordinance

satisfies all three conditions for express preemption. First, the Ordinance regulates

“movement in interstate commerce” because it regulates the dissemination of

plants and seeds from fields, which implicates interstate commerce. See 7 U.S.C. §

7711(a). Second, the Ordinance was passed in order to “control . . . , eradicate . . . ,

or prevent the introduction or dissemination of a . . . plant pest, or noxious weed.”

Id. § 7756(b)(1). An express purpose of the Ordinance is to prevent the spread of

GE plants, and it implements this charge by banning most planting and testing of

GE plants. HCC §§ 14-128, 14-130, 14-131. Third, APHIS has issued regulations




                                              4
in order to prevent the dissemination of the class of plant pests at issue, GE crops.

See 7 C.F.R. Part 340.

      We conclude that the Ordinance is expressly preempted by the PPA to the

extent that it seeks to ban GE plants that APHIS regulates as plant pests.

      B.      The Ordinance is impliedly preempted by state law.

      We have held that federal law preempts the Ordinance in its application to

GE plants that APHIS regulates as plant pests, but not in its application to federally

deregulated, commercialized GE plants. However, we find that Hawaii state law

impliedly preempts the Ordinance in its remaining application to commercialized

GE plants.3

      As explained in Atay and Syngenta Seeds, Inc. v. County of Kauai, Nos.

14-16833, 14-16848, Hawaii courts apply a “‘comprehensive statutory scheme’

test” to decide field-preemption claims under HRS § 46-1.5(13), such as that made

by the GE Parties 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



      3
             We agree with the district court in Syngenta Seeds, Inc. v. County of
Kauai, that the scope of federal preemption delineates the breadth of state field
preemption in this case. No. Civ. 14-00014 BMK, 2014 WL 4216022, at *9 n.11
(D. Haw. Aug. 25, 2014).
                                           5
state.” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1209 (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. However, as is true

of our federal preemption analysis, 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).

      As explained in Atay, Hawaii has established a comprehensive, uniform, and

exclusive statutory scheme to address the threat posed by introduced, potentially

harmful plants, and has delegated authority to the Hawaii Department of

Agriculture (DOA) to enact rules to that end. By banning commercialized GE

plants, the Ordinance impermissibly intrudes into this area of exclusive State




                                           6
regulation and thus is beyond the County’s authority under HRS § 46-1.5(13) and

preempted.4 See Atay, Nos. 15-16466, 15-16552.

                                          II.

      We hold that the County’s Ordinance banning the cultivation and testing of

GE plants is preempted by the Plant Protection Act’s express preemption clause in

its application to GE plants regulated by APHIS as plant pests. We further hold

that the Ordinance is impliedly preempted by Hawaii law in its application to

federally deregulated, commercialized GE plants.

      The district court’s summary judgment in favor of the GE Parties is

AFFIRMED.




      4
              For the reasons set forth in our concurrently filed opinion in Syngenta,
we also reject Appellant’s argument that the Hawaii Constitution’s conservation
clause, Article XI, § 1, alters the preemption analysis where local laws aimed at
conserving and protecting the environment are at issue. Counties lack inherent
authority under the Hawaii Constitution. Haw. Gov’t Employees’ Ass’n v. Maui,
576 P.2d 1029, 1038 (Haw. 1978); In re Application of Anamizu, 481 P.2d 116,
118 (Haw. 1971). Accordingly, counties have no power to conserve the public
trust unless the State has delegated to them the authority to do so. Because Hawaii
law under HRS § 46-1.5(13) does not permit counties to enact ordinances that
conflict with state law or intrude upon areas expressly or impliedly reserved for
state regulation, the determinative question is whether the Ordinance is impliedly
preempted by state law.


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