good morning your honors please the court my name is bernie bays i represent shaka which is a maori community group with over five hundred members and several of its individual members  clients are interveners as a matter of right in the federal action and they are the plaintiffs in the state action that was removed to federal court as you know in this case the district court struck down a now we ordinance that was passed by the maui voters and general election through the initiative process the ordinance was passed to address serious health  environmental and economic concerns arising out of the extensive genetic and engineered crop industry within the county of maui  basically the crop industry and grown out of control on maui and there was no end in sight i would like to point out that this ordinance is the only ordinance that has been passed by initiative since the initiative process was added to the county charter in one thousand nine hundred three over thirty years ago i think this underscores the importance of this ordinance to the people of maui that i represent i think it's unquestioned this ordinance is a valid exercise of the broad police power that has been delegated by the state to the county of maui and i paraphrase to an act ordinances deemed necessary to protect the health life and property of its citizens which is exactly what this ordinance does this also means that this ordinance was in acted for legitimate public purposes and that this ordinance is a reasonable approach to achieving those purposes are you going are you speaking on that are you going to be speaking on federal preemption yes i'm go be forced to him and both state preemption and i want to ask you a question on in this case the procedural posterous a little different than the other case in the sense that judge mall way of my understanding is found both express federal preemption and implied federal preemption correct that's correct you're wrong and you tell me the difference and the implications of those polled and well i think there is no federal preemption where there is an express of preemption provision in the pledge protection act as you know she struck down this other was valid statute on two grounds state law preemption and federal preemption under the plant protection act and the plan protection act has a specific express preemption provision in section four thirty six what i'm asking you for example if this panel were to hold that only express federal preemption applies with the ordinance be facially invalid or only invalid as applied as to plants that are ok ok what would that mean if she is that there's federal express preemption and implied federal preemption how would that play out well i think what that w know the court and will sack carefully narrow lead to find the scope of the plant protection act to regulating put plant pass in order to avoid harm or injury to other plants this ordinance does not do that this ordinance is a land use ordinance operating only within maui county and its objective is not t control plant pest harms but to control public safety environmental and economic risks that result not from a plant past but the from the farming activities and practices that are being engaged in so there's no way offered by the county to regulate a plant pest if you would like i could take a minute i could run through some of the harms that are addressed by this ordinance and as i do that you'll see that none of them are plant pest harms the fall within the scope of the plant protection act as defined by this court in the vilsack case would hald and so that would be most helpful if you could address that because i think my understanding they express preemption and the state or us our position on well our position is simple on federal preemption your honor and that imply implied federal preemption would reach more things wouldn't i mean it would really you know what it's our position your honor this is very simple in the recent case  pride's decided by the supreme court said that where there's an express preemption provision in the law that's the definitive expression of congressional intent as to the scope of preemption there's no need to look beyond the expressed preemption provision and the express preemption provision in the plant protection act to find the scope of federal preemption issue do you agree that the ordinance seeks to control plants that are regulated by a facades plant pets under the plant protection act no makes no effort to do this all this ordinance does is regulate farming operations and practices within the county of maui and the public health environmental and economic issues that those create it does nothing to regulate plant pests that's the responsibility of the department u s department of agriculture and a focus and as was pointed out earlier of the u s department of agriculture in its brief in the vilsack a specific lee said that the regulation of these kinds of public health environmental and economic concerns were beyond the scope of it's a for the end of the plant protection act and it specifically said that those kinds of parts should be regulated by the states and local governments ok but and we agree it completely i think the analysis by the court in that case was exactly correct as to the limited scope of the plant protection and what the hell there is that the plant protection act addressed only plan pest horns to prevent injury or damage to other plants that's the scope of the plant protection act and the court specifically said in bill sac that these kind of public safety and environmental harms are beyond the scope of regulation under the plant protection act specifically they discussed trance genic contamination which is one of the harms the we seek to avoid this ordinance they also said increase the herbicide use was not a plant pest harm and should be regulated by local government they also pointed to the development of super w d as another hormone that was not a plant pest harm and the court there said that those were beyond the scope of the protection act and the rest preemption provision and section four thirty six even more narrowly defined as the scope of of preemption in this case and i would be happy to take a look at those with you if that would be helpful of cour now ok but i think you're saying that phil sac just controls yes but i when i look at phil sack of course i'm sitting next to someone and i think i have something to do with it not sure you know i'm not sure that the two can't be there that this can't be harmonized with felt sack but i'm not sure that phil sack i don't know that i read it the same that you do well the bills that did the scots the words noxious we were to appear on the express the first element of the express preemption provision in the player protection act and what the designated genetically engineered plants as a plant pest and had not regulated them under the part three sixty regulations which deal with noxious weeds but they had instead dealt with them one more time your honour's getting a workout today it is a pleasure truly i'm going to be addressing in the federal preemption express and implied it which point splitting the argument with ms problems to be discussing standing issues in the case as well as i'm some wrap up on state law preemption there's a federal preemption i'd like to start with one thing because i think it's been a bit confused today vilsack had nothing to do with crops that were still under regulation by the agency it had to do with the regulated crops and so any statements that were made in that case about what a physicist toward it was or wasn't to prevent harms or alleged harm such as cross pollination wasn't it issue it's very clear from the regulations themselves again if you look at part three forty dought three and part three forty taught for it's filled with requirements for the notification process and for the first permit process that crops not be grown close together that there not be inadvertent mixing and all of that all of that is going to the alleged cross pollination issues that we cited in our brief it a page forty two and kitchen and permit processes to ensure g organisms and their progeny do not escape or persist in the environment companies must submit all plans for field testing for review the program only proves those applicants with the ability to adequately confine regulated articles within field test sites etc but the whole program is to prevent the dissemination of these plant pests until or unless it's decided they're not so forced they've got that authority to prevent that form of course they address it in fact permits tend to be hundreds of pages of long along with you know stalk full of isolation distances and the like in terms of the express preemption for a moment council you know with due respect was sort of mixing up supreme court precedence when he said that if there is express preemption provision it can't have implied pre amps he was referring to the supreme court's i'm holding in simple oney it was a long time ago that aspect of supposedly has been overruled by implied preemption as well that's what i want to know and terms of that if what more do you get out of an implied preemption finding thank your own there's two aspects to it number one  it as to regulated crops the ones that are still under regulation it is an argument that doesn't give us more but even if this court were to disagree with the express preemption implied preemption would cover those crops under regulation and i think that argument is actually very straightforward and very compelling when you say regulated crops what are you when i'm talking about this point are g e crops that are being grown pursuant to permits or under the new for cation procedure  preemption applies to deregulated crops it's a much broader remedy for us against this ordinance in other words you wouldn't it's would be knocked out in its entirety as to regulated first the reason why you've got very evident conflict or obstacle preemption is the agency wouldn't be able to conduct its program under the methods that it's chosen to do so if states and localities could simply say no field tests i mean the agency comes in and says yes you may have a field test that's both to advance the defeat your obstacle preemption not at all it can't give it rather it just complements it your honor in other words the fact that there's an express preemption clause we think covers all of that turf already but if this court were to disagree you'd still have obstacle preemption and as i've noted the supreme court is held now time and again that the presence of an express preemption clause doesn't affect how you look at a implied preempt but i think you look at some federal register statements that you quote in your brief in support of your obstacle preemption is dealing with under its regulations states can't add to or have different from you know regulations of these same crops and so that certainly covers the the turf that's covered by the express preemption plus we think it goes further we do believe that implied preemption covers deregulated crops as well and you know agriculture has always been the subject matter of states and counties and all of that give me some examples of our but other areas where implied federal preemption isn't like banks or where whereas at this broad i mean give me some other well let me put it they're asking for something really broad hair your honor i am not saying but feel preemption just to be clear here you know where it's still in the realm of conflict preemption and so it is my duty and my burden to be able to explain what interests of the federal government are being frustrated in order to justify an implied preemption of deregulated i've already explained why regulated white state regulation of regulated crops would frustrate those programs as to deregulated and i think that's it's awfully compelling as to deregulate crops the answer is that you've got a statute here that quite express seven seven zero one congress is findings or that the smooth movement of enterable plants through the united states is critical to the u s economy and should be facilitated to the extent  practicable with the agency is done and that provisional so seven seven one also provides that the regulations have to be done on the basis of sound science the agency has taken these instructions from congress and acting within its authority under congress has established a scheme is science piece where it determines over a multi year period subject to rigorous analysis whether these g e plants have harmes that are different from their conventional plants from which they  originated if they don't have harms that are greater than that they are deregulated they're determined not to be plant pass with the what the county is doing here at least in part is coming in and saying we don't buy it we don't trust what the federal government and you've got to redo the analysis that if it's already did again at least in part and if you look for example at the ordinance of section seventy three f they talk about horizontal gene transfer from g organisms between organisms of different species may occur that's one of things that they say that has now got to be done under the county's effects well that is that what i'm thinking is maybe it doesn't make much of a difference here but i published opinion and nine states on the ninth circuit it could make a big difference under if for it's implied preemption it's found in terms of its president yeah there's no doubt we don't think that we're acting outside of precedent in this case so we don't think that this court would be taking an additional step but what other case has both implied both express and imply pre amps will again the cases that i cited before from the supreme court where you've got freightliner spritz my entire or all cases where there were expressed preemption clauses and the court went on to to consider implied preemption as well and referred back to it statement in simple loney that you couldn't have both and said that that's wrong and the reason actually when you're talking at least but conflict preemption makes a lot of sense congress can't foresee everything that is state or county might do they could frustrate the federal plan or what the agency  to accomplish because it only when it comes out you can say and you talk about ha ha ha it's because there is a presumption that whatever is beyond the scope of the express preemption provision was not intended to be preempted by congress no i don't think there is your honor i don't think that that presumption has outlived the cases that i've cited but in any event what we're talking about here of course is preemption by what the agency is doing and we have to look there to the city of new york for says f c c case the supreme court case at that point you're not looking at congressional intent to preempt anything in particular what you're looking at there is is the county in this case acting within its lawful authority  promulgating its regulations that's the first question the second question then is is what the no sir not the county is what if is is doing something that it's has lawful authority to do that's the first question here i there's no dispute about that the second question then is is what the state or county is doing going to frustrate the accomplishment of what that agency is doing now that's not something that congress you know often will will foresee because it doesn't always foresee everything that an agency is going to do under its lawful authority to to promote the programs i'm sure you have to look at conflict preemption as well as express preemption and certainly states and counties aren't allowed to frustrate what federal and now i get to say good afternoon after we've been at this so long i want to touch upon a few things with respect to state preemption that i think we're  somewhat confused this morning and that is the fact that the argument seems to be that if the legislature did not say that the counties couldn't do it they can and that simply disregards the manner in which our state government is set up under the dillon will we have a situation where the counties are only allowed to do what has been specifically delegated to the counties so it is not a situation where you just sitting there and everyone can do everything as long as it's not prohibited it's exactly the opposite and so what you have to start with is where is the authority to regulate in the area of ag and i believe that article eleven section three is critical to the beginning of the analysis as to whether or not there is a comprehensive s and i think both judge curran and judge moore way got it right in this regard judge car and said that the idea that there may be police powers or the public trust obligation does not get around the fact that the state has a comprehensive regulatory scheme for regulating pesticides and g e crops which together with the context of the statewide constitutional concern for ad and the administrative structures in the department of a bag and the department of health evidence is intent that state law be uniform and exclusive and the constitution said the state shall conserve and protect agricultural lands promote diversified and the constitutional convention show that diversified have included increase agricultural self sufficiency and assure the availability of agriculturally suitable lands so we start with that proposition and then it says the legislature shall provide standards and criteria to accomplish the foregoing and when the legislature set up the very elaborate schemes it was consistent with how the state operates we are an incredible whole why is an incredibly centralized government we have no sound we have no towns we have the state government which covers everything and we've got four counties and historically we have not delegated a tremendous regulatory authority to the counties i mean we have a statewide school system from kindergarten all the way up through college our community colleges are statewide run by the state the department of health our hospitals everything is centralized so when we talk about having the department of ag have these people come in from the counties it is to advise the state as to how to the state is going to regulate not as a way of delegation judge callahan you asked earlier about the question of whether or not one ninety four which had a role for the counties ninety four to clearly recognize that counties may control plant pass well i think what that says is that they can come in and work with the state the way the system works is the department of air calls upon people from all over the department of tropical the university county players and brings them in and says let's figure out what we should be doing on a statewide basis and then one forty one specifically says and then the department of ag should go to the legislature to see whether there are additional things but it is a centralized aspect it is not a statute that says ok counties you go regulate that's not what hundred one ninety four does one forty one three does it is it is deals with this centralized aspect now it seems no i mean i think that when we were discussing if your case more like you in are more like televisa company or whatever and seems like it maybe it's more like you mean well i think the reason that it's distinguishable from ewing is that in this case the counties are simply relying on broad police powers and those broad police powers are within the statute itself restricted not once but twice their police power say subject to the general laws so if the state has general laws in the department of bag i think that's already a limitation and then the police power says also they cannot regulate where there is a comprehensive scheme well or conflict a practical application of how it plays out for you if the court were to hold there is express federal preemption there's not express there is not implied federal preemption and that there's not applied state preemption how does that play out for you well i mean if if the court were to rule that way you would be changing fundamentally the way that the state government has operated throughout its history you basically be giving counties rights to regulate in areas that they've they've never been regulatory bodies if you look for example at the veto message and co i the mayor said this isn't our thing if you look at the county here the county has not even appealed the ruling and we'll get to that the moment if i have time but i think that that it would fundamentally change things and give counties areas of regulation that simply have never existed what it was what it sounded mentally let me i'm always looking for easy ways every time you talk about graham ssion but what about the county ordinance penalty provision that violates the charter if that's if that's an violation of the charter find that the penalty provision violates county charter if it's a panel need to address the preemption issue as long as the panel found that there was no ability to sever and if the if the court says my question so yes i don't believe there is an ability sever and as i mentioned so if the court if the court believed that it violated the the charter and was not severable that could be the end of the story and we don't need to reach anything else but we believe that you cannot sever because it was part of the penalty provision was part and parcel of the entire ordinance and as judge moore always said you may be able to look at part of the severance but the civil penalties is another problem that you have and then in addition there are other charter problems that this ordinance had including a limp that the order that the initiative attempted to place a limit on the role of the county council and whether or not you know how long it would take for the county council to be able to model modify or repeal the statute so there are many problems and we think that without looking at all of them you could never sever and try and slice and dice it because you'd be stepping in and trying to rewrite the entire law and that is is not allowed so you can get rid of the maui ordinance with respect to the county charter issues there are county charter issues also in co i which the court never reached but but we believe that if you could also eliminate the entire law by looking at the state preemption dismiss and i know i have very limited time here but we believe that the shaka should not be able to proceed because they came in here as proponents of the law hollingsworth made clear that as proponents they did not have standing and we believe that they are more like they put the plaintiff in diamond where they're attempting to pursue the appeal simply to force the government to pass a certain type of law and we don't believe that they have that right and finally under the loo have blue hand test they have not asserted an injury in fact instead their injury is general to the public to the population at large ordinance to go in to effect for example a lot of what they're saying is that they are troubled by pesticides the maui ordinance is not a pesticide wouldn't so we believe that their ability to show standing when the county has chosen not to appeal it's something that they cannot meet and actually this court could strike down or just simply dismiss this appeal and not reach the merits and we've right then it is treated as presumptively another as far as the people as concerned yes ok so based on your argument of the state preemption then they couldn't ban they then they wouldn't be able to ban these if it was deregulated then they still couldn't belgium is that right that's correct if the if the court dops the federal conflict implied conflict preemption the state could not do it but if either the court does not agree or you look at other aspects of regulation that wouldn't potentially be conflict and then the court then the our position is that if the state that has the exclusive you i'm going to start out by agreeing with the statement that was made by counsel he said that the whole purpose of the plant protection act is to prevent dissemination of a plan  d i agree with that it's the responsibility of atheists in issuing these permits to prevent the dissemination of a plan passed that's eavis a job we assume they're doing a good job on our job as the county of mao he is to regulate land use and within maui county and to regulate the horrors that can be caused by those land uses that's exactly what this ordinance does it does nothing to interfere with a full says responsibility to prevent and i quote again the dissemination of a plan passed so that's the limitation of the authority of a according to this court in vilsack so that's its job our job is to regulate the farming practices and farming operations within maui county and historically the regulations of those kinds of practices have been done in hawaii at the county level subject to the general parameters established by the state so historically that's the way it's been  to spend just a moment on the state preemption issue which is already been pretty well paid to death here what the state could do or might have done is not what's relevant here what's relevant here what the state has done and the reality is that the attorney general has said that there are no state statutes regulating genetically modified crop farming in hawaii and as a practical matter what's happened is that those the regulation of g e crops in hawaii has been left to the counties and this county by county or pro choice to regulation of  crops in hawaii makes a great deal of sense where the counties are separated from each other by big stretches of open ocean so farming practices in our county are not going to have an effect in honolulu county also a county by county regulation makes sense because each of the counties have different land use goals and objectives so it makes sense in hawaii to do what we have done and that's that the state has not regulated genetically modified crops according to the attorney general and i think we can expect that there were if there were the kind of statutory scheme that was intended to be comprehensive you know form an exclusive that the attorney general of the state of hawaii would know about he said there are no such laws and as you can see  have been are introduced at the state level to regulate crops not have been passed the reality is that this has been done on a county by county basis and i think in hawaii that's a sensible way to do it the case i was referring to on expressed preemption versus implied preemption is the franklin case and in that case the supreme court recently said that where there is an express preemption provision in the law that defines could rushnell intent as to preemption and what the court says was this congress does not hide elephants you know mousehole in other words of congress has explain with respect to preemption it includes that in the express preemption provision so we look at look to that exclusively to define the scope of preemption that was