but where as in the previous case the ordinance addressed disclosure of genetically engineered crops white county passed ordinance thirteen one twenty one to protect local residents the rights of farmers growing non genetic we engineered crops the local economy and hawaii's unique natural environment from transgenic contamination by freezing the production of genetically engineered crops to the existing scheme within the meaning of richardson as required by hawaii law of implied preemption that exclusively governs either genetically engineered crops or whether or where any crops can be grown in fact when the county considered an acting the ordinance asked the attorney general whether it was constitutional and the attorney general response which is in our excerpts of record thirty six said the state of hawaii currently has no statute regulating the propagation cultivation raising growing sale or distribution of trans gendered organisms  in fact eight years ago the county of white passed an ordinance prohibiting growing genetically engineered coffee to protect the big island's world famous kona coffee industry as well as prohibiting growing genetically engineered taro that has been on the books now for at least eight years the state never objected the department of their culture never objected nobody objected and said oh well this is preempted by the state you can't do this yet that ordinance in effect is virtually indistinguishable from ordinance thirteen one twenty one in it and yet it's been on the books for eight years without objection in fact the state has never objected the state has never made the arguments that the pelleas in this case are making and that that support judge kerns decision in fact after hurricane isabel a few years ago went through the big island and blew over hundreds of l p c a trees which fell on power lines and blocked roads and trapped people in their homes without power water the county of why pass an ordinance allowing the county to enter private property when necessary to remove these potentially harmful plants to the state object now that anybody object not that i'm aware of and yet under the theory under under judge kerns ruling in this case and under the theory that's been argued by the pelleas county can't do that yet that's exactly what the police power is for the police power exists to allow the county to do exactly what it did with that harmful plant all each one of these so there's no question that if the state wants to regulate genetically engineered crops or l b z a trees or whatever it can do so nobody's denying that that's not the kit the question in this case whether the whether the state could regulate those things if the legislature decides that it's appropriate of course the legislature can do that could the department of agriculture regulate them if it chooses to possibly that's also not the question in this case because mere authority to do something under hawaii law does not meet the richardson court's test for implied preemption there's absolutely nothing in richardson that says that merely because we have a department of agriculture with broad authority that the counties police power has been stripped away with respect to anything that has to do with plants  it seems to clearly authorize the department of agriculture to identify and restrict harmful plants no question ok and it seems like the state board of our culture is to a statewide agricultural policy do you agree with that to some degree they have the power does that set state policy and but i would add that statewide policy and state wide even a lot a lot of statewide application is not the same as exclusive authority that precludes exercise of the police power so i guess that's where i'm headed and  where you're at i guess because i'm just trying to figure out why would that power not be exclusive well i think the burden is to the burden on someone on the party alleging preemption is exclusivity the question is where is that x that exclusivity is it in the legislative history is it in the language of the statute all we have is a statute that says the department of agriculture if it wants to pardon me may designate a plant as restricted before and let it do that and if it does that that will if it wants to designate a genetically engineered of plant as restricted i don't see anybody complaining if it wants to designate an l b z a tree is restricted great then the counties will have to do it and you agree that there's no part of why a law that specifically gives the counties authority to identify restrict harmful plants i believe that it's clear under hawaii supreme court plus precedent that the police power is all that the power that the county needs so just a specific law that specifically delegates are just gives the county authority to to identify restrict harmful clime not aware of any such law and as i was saying that it's  that the the europe court specifically said well you have the police power that's all you need in the absence of preemption so you do not need this specific delegation on everything that is covered by the police power the police power is broad and that's the language of the white courts and i thought ok so how do you with respect to imply state preemption how do you distinguish in re application of animas which concluded that a city ordinance regulating contractors was preempted by state statutory scheme that festered a board with broad powers relative to the licensing or regulating of contractors so i mean it i mean is it your position that a broad delegation of rule making authority to a state agency can never preempt local laws concerning subjects that fall within the scope of the delegation unless the agency has issued a rule regulating that specific i think my position would be close to that but let me let me deal with your question about distinguishing enemies in enemies of the state created a specific licensing scheme requiring all contractors get to get licensed by the contractors licensing board and this license affirmatively granted contractors the right to practice their trade throughout the state and then the county ordinance specifically prohibited dually license contractors from practicing in the in that county without an additional credential and in the words of the enemies a court quote severely diluting the value of the uniform state licensing system and the and in the conflict was clear and the court emphasized that the court said a person satisfying the state standards acquires permission to pursue his occupation throughout the state and this permission may not be circumscribed by local authorities and that that was key there is no state law addressing the state's ordinance is subject matter no state law grants anyone the right to go to grow these crops  and there is no interference with any state law so all in the enemies who is distinguishable in all of those ways which are some of the ways in which richardson distinguished enemies here this if the state department of agriculture is authorized to regulate harmful plants and has chosen not to ban the g and most we don't know  i would agree that the county cannot pass an ordinance that says no you may not that's enemies the county has no laws saying you make grow whatever you want wherever you want all of it we have the department of agriculture which like every  department of agriculture in the country has brought authority to deal with harmful plants that does not cut off the county's police power would that be a conflict i see no conflict there is no right that anybody is treading on there is no state action that is being conflicted with all we have is a state department with broad authority which it can exercise in various ways and has not exercised in this area and if it wants to exercise it then we would look at how it exercised it in relation to the ordinance thank you counsel thank you and when you put on some thirty four  before the court in this appeal is whether the preemption clause of the plant protection act actually covers the white county ordinance before the court below the industry did say that there was perhaps an implied preemption claim that was rejected by the court below and subsequently the industry dropped its appeal so here we are with the the clause itself and i want to just discuss briefly the very unusual legal setting in which we examine this particular question so here we have this court saying hey the matter of this ordinance is not something that's under federal the scope of the protection act sorry and there we actually have the relevant agency that you think that they would know whether it's preempt or not is there a and state level through planting restrictions so it would seem to me fairly impossible at this point the court would say listen this statute has doesn't have the power to regulate the harms that are in this ordinance but it does have the power to restrict the states and localities you know that even though the very agency involved says you know that's exactly where they handle it state and county planting and reminds me a little of the lower case where if that were to be true then these intended to give no redress to a group of people who are suffering which is that we drilled down on the federal preemption that we have limited here now with with respect to the express federal preemption issue do you agree that that county ordinance seeks to control plants that are regulated by ava's as plant pass under the p p s no we do not agree the there are several categories of plants that are covered and  the definitions are different the articles we're talking about here that are pursuant to the ordinance that are there and says regulating are regulated articles they are not plant tests they are not noxious weeds no genetically engineer plant has ever been determined by the secretary to be a plant pest or to be an actual street it's never happened that one hundred seventeen regulated articles have gone through this process which this court has described quite it's yes so why shouldn't they be considered plant passed for the purposes of the express preemption analysis well we have right now two pres candidates from each party for presidency they are not actual candidates they are presumptive candidates we have reason to believe they may be candidates but i haven't gone through the process yet is not a for s language in center city first of all sex because that their church says listen the whole point is that the examination is does this presumptive plan pressed then become an actual plan passed through this long review process in part three forty that's the whole process if it were an actual plan passed to begin with which is what the interview saying then that the different process it was a hit we have a it is a plan best and now we're looking to see if it stays a plant that's that's not what the courts as that's not what to regulate presumptive plant pass no it wouldn't because the under the preemption cause right the reason this is important the reason we're talking about in terms of preemption is that rooms versus this only applies the county state ordinance is done in order to control a plant pest or a noxious weed right in order to control right so if if it's not as into the case this is a hypothetical that only express federal preemption applies would the ordinance be facially invalid or only invalid as applied to plants that are regulated under the p and have not been deregulated the we agree with judge kerns lower court ruling that to the extent that a regulator article has been determined to be a plant test or has been determined to be a noxious weed it would be preempted if it also filled the other pranks and there's other progs of this preemption clause because it says you have to be in order to be put to be you know this for th hope you'll affirm that decision saying yes to the extent that a regular article is then determined to be a plant best or determined to be a noxious weed through a separate administrative determination yes then it would fall foul of the preemption cause it would be preempted so just to be o's that are also plant pass that's correct it does not at this point do that now and it could not do so should the age of some point make a separate determination that one of these regulated thank you your honor may please the court i'm chris landau and once again i'm here to address the state preemption issues in this case with me today counsel table is rick brass who will address the federal preemption issues in this case i'd like to start if i might just with the legal framework that we have here which is the richardson test because i think it has been even though the test is very clear i think opposing counsel has really muddied the waters there that test said that a state law whether state law amps a county ordinance depends on whether it covers the same subject matter embrace within a comprehensive state statutory scheme disclosing and expressed or implied intent to be exclusive in uniform throughout the state think a lot of the discussion that we've heard this morning is along the lines of saying well nothing in the state laws regulating potentially harmful plants prohibits the the counties from doing anything in this area but we know from richardson on  face that this intent can be implied as it was in the on a measly two and citizens utilities case and those were very much cases where the whole why supreme court looked to comprehensive state authority that was given over a particular area and said well we're dealing with counties which after all are creatures of the state and are authorized to exercise only those powers given by the state we have to figure out what was the state really intending if the state created a comprehensive s it really leaving room for the counties to supplement or was it meant to be exclusive and uniform at the state level with respect to g m o those that county now want to pass a complete ban it in this case we're talking a complete o's on the theory that they are allegedly harmful plants to other plants into the environment because of these cross pollination concerns those are the very kinds of concerns that the state can regulate through its comprehensive mechanism under the quarantine laws section one fifty eight which an entire subsection of the hawaii code which i'm sure we all had to fill out those forms on the plane which go to that very issue that they're very concerned about forty three one forty one to one forty one to one forty three and one ninety four dash to a clearly recognize that counties may control panel plant pests and then you've got this state attorney general attorney general's letter explaining that the state does not have any laws regulating g e crops persuasive isn't that persuasive evidence that the legislature did not in exclusive state regulation to cry absolutely not you are let me start with that letter because i think that the opposing counsel made a reference to that and that that is incredibly misleading that there was that letter was a last line of yes so i mislead me then seen that you have recently attorney general's office at the state level has expressed some constitutional concerns about that those are all about labeling they were first amended concerns it's attached to we have says to our brief and  the letter that the county was referring to the state letter is also attached here it is clear that that county was not asking about is that is the safe scheme exclusive and the in the state letter responding to that it says he has no statute regulating g m always or g e s as such we don't dispute that there is no regulation of there's no statute specifically regulating g e d s it falls within the ambi of the harm all the various plants that regulate it broader field potentially harmful plants their whole we don't agree by the way that these would fit within the regime of potentially harmful monsters we don't think they're harmful the point is they believe that the county's concerns the very concerns that underlie the ordinance issue here are concerns as we've heard today about cross pollination ok those kind of concerns are precisely the kind of concerns that the state has complete and a very comprehensive regulatory system over the fifty a system the one fifty two noxious weed statute the the there is an advisory board on potentially harmful plants there is an elated scheme and they say oh well you can't have a comprehensive state sector scheme you're talk about multiple statues that gets things backwards the fact that it's being addressed in multiple interlocking statutes only under cores how deeply the state is involved in covering this the idea that the state is leaving the counties room to completely ban a category of plans that the state has said it's fine to bring them in is preposterous you know this is not an area that the state doesn't care about or doesn't have a mechanism there is this particularly to board that covers when it comes in those of the quarantine laws which even allow the state to go beyond the go into the fields  definition of noxious weed in the state statute is much excuse me broader it says any plant species which is or may be likely to become injurious harmful or deleterious to the agricultural industry or the state as a terminal designated by the party for time to time again we believe that it's not dealt with serious and shouldn't be classified as that but that they believe that it is this is that the bait that we should be having at the statewide level there's no room here to have this debate at the county level and have the state preemption your honor i would say no i think he very clearly explained that there are these comprehensive regimes and i can't speak to the federal preemption issues mr innocence federal express and not at all and mr press will speak to that i'm i'm the state guy here this this morning on for this case but i want to go back to the point we've heard a lot from the other side about well there's this police power statute in hawaii that is a very general police powers statute but it actually is very carefully limited in its general nonspecific doesn't say anything about plants and then it says you may have on any subject matter not inconsistent with or tending to defeat the intent of any state statute where the statute does not disclose an expressed or implied intent that the statute chil be exclusive in uniform throughout the state so the state very carefully in the very provision where it was giving this police power said but wait a second we don't want to be construe this as a blank check we're giving the counties were only giving it you know but pursuant to you can't you have authority that goes beyond or they would trench on an area that is expressed the or implied lee occupied by the state and i think it's interesting the hawaii supreme court and richardson took as its preemption test basically this language so the preemption is kind of the flipside of the authority issue here that the police power is circumscribed to prevent it from from  authority over this or that as a result of the broad authority this the department of agriculture has right state as a sort comprehension comprehensive regulations in place but i guess i'm just trying to figure out how do we know  i'd like to see what you say to this how do we know that the a while legislature didn't intend for the state department or culture regulations to set like the minimum or the floor  for you know their policy such that the county could supplement with their own regulations because probably a state you know qantas paid everything and so what's your response to that my response to that is that here at the case which has been cited by the other side which is a case where the state statute made it clear it was the statute the legislative history that was intended to be a minimum floor and that's  case where a comprehensive stack was about insurance car insurance and the state statutory scheme the same or it was made hey there's a whole comprehensive states he for insurance that preempts the county that the court looked at that scheme and said well we're looking at the legislative history and there are references here to this is a uniform minimum basic standard of insurance and the fact that it was minimum suggested that that they did not occupy the field for that reason there was absolutely nothing in the legislative history or the statute here that suggests that the state regulatory thought of harmful plans is just setting minimum standards and i can't overstate the import all of the cases in which the whole why supreme court has there's nothing saying that it's not well your honor but there but that's why you have to go back and then you're kind of in the land of looking for english oh that makes a comprehensive and i think here we have it we're not just relying on the comprehensive scheme we're also rely on the fact that state officials are brought into the scheme their representatives of each of the city county officials are brought into the state scheme to make sure that they participate have a voice there again that is inconsistent with the idea that the counties had independent regulatory authority were relying on the fact that in both pesticides and harmful plants this is a harmful plant this is a harmful plant case one fifty eight dash ten advisory committee on plants and animals again that doesn't talk about the counties being involved to the contrary it talks about expertise certain experts in the area have to be either the state regime is a uniform regime based on scientific expertise there's no that counties based on political concerns or whatever voter initiatives can come in and say well we just we think this is what we want to do i mean that the state regime can extend it's based on expertise is inconsistent with that what  they think serves the best example for us to follow that's more most similar to your situation i think the anime sue case for the very reasons that judge callahan described really the court said that there's a very comprehensive state regime it allows the contractors to practice their trade and doesn't but by implication it doesn't allow the counties to supplement that the exact thing could be said here there's a comprehensive regime that allows these g e plants to be brought in and used in hawaii without being restricted or regulated and the and therefore the counties implied we can't go and do what the state didn't do that would be inconsistent with that particular statutory scheme  so i think those are you know provisions when you look at that there's a fundamental legal issue here i think it's important for the court to understand the other side makes the argument that unless and to the extent that the the state doesn't actually exercise a particular regulatory authority the extent of the regulatory authority per se is irrelevant we're only looking at things the state has done they base that on the un case from the intermediate court of appeals the un case is very different because you in case there was a state law that said it was a noise ordinance and this is about a boom box and this is the somebody was prosecuted under the local ordinance about noise and one of the defenses was noise is exclusively a statewide issue and the courts no it isn't we're looking at the state statute and the state statute says the counties may regulate noise except as inconsistent with state rules so they say well there's no field preemption here because we see on the face of it that it is allowing the state the counties to have a role except it's inconsistent so it's obvious that ensure it is human hewing they were looking to see whether there was an inconsistent  rule and they decided that the state rule there was not inconsistent because it governs vehicular noise and they decided that means noise emitted by the vehicles not by a boom box inside the vehicle but that case certainly does not stand for the proposition as they are suggesting that to a comprehensive statutory or comprehensive state scheme preemption you have to actually identify affirmative regulatory authority and and i think the key point here is that the hawaii framework of statutes contemplate no role for this for the counties in in banning or otherwise regulating g e crops and to stand to allow county bans would turn that absolutely on its head again understanding keep in mind that the counties have no just judge thomas and it please the court i'd like to first correct some of the framing of the express preemption provision and then address it specifics in terms of the framing avis didn't say in bill sack and has never said that it lacks the ability for example to protect against cross pollination for crops that it is still regulating under permits or under notification to the extent that it was discussing its lack of authority in that respect it was talking about crops that have been deregulated crops that are under regulated regulation are actually regulated quite stringently to protect against cross pollination and the like guess that they have talked about that but the record and previous court decision show that titian addicts drift from g e crops have caused significant economic damage to non g e farmers and so isn't managing this type of land use compatibility issue with the traditional core power of local governments your honor it may be within their power but for the fact that the federal regime is regulating it end in these states interference with that of the counties in this case interference with that would actually disrupt and frustrate the regime and the reason i'm going to get to this a bit more in implied preemption when i discuss this in the next case or the case after that but the rationale essentially is that these field trials are going on for two purposes number one because the count the the agency has the authority from congress under seven seven a one to facilitate  commerce in plants and while at the same time protecting against planned pest forms so they're allowing the field trials both to accomplish that goal of facilitating commerce in these plants which were found again under that same section to be critical to the u s economy but also because the agency has to determine whether these plants rightly are within its jurisdiction in other words whether these really are plant s and the inability to have these kinds of field tests would deprive the agency of its ability to actually determine its own jurisdiction because in with the help the field tests the agency doesn't have the data to determine whether these should be deregulated or should continue to be regulated as planned i know you're going to you're going to argue both of them but i mean let me i think there's a couple things i want to ask you do you agree that express preemption cards does not apply to state and local regulations of federally  regulated g e plants absolutely your honor ok so that's not really at issue that's related issue and ok but i'm assuming that i don't know if you're you're probably going to cover it sort you're going to cross pollinate here between this and the next case i think that as long as the judge doesn't regulate against yeah judge curran found express appreciation correct and not imply and judge small way and the other one found bot right also correct right so i know what i was asking mr landau about was there anything he disagreed about judge curran i'm assuming you're going to say that you think he got the implied preemption wrong that's exactly right your honor i think you got things it is regulating your crop to the extent that it has regular tory authority of the crop the states can't add additional requirements during that time period the express preemption provision it issue in this case is an outgrowth of that historic position that if it's had always taken and the ordinance here flunks all three requirements or one could put it differently meets all three requirements of the express preemption statute to begin with preamble to its notice a proposed rule making exactly what it was doing and why and what it said and this is it fifty one federal register two three three five five it's eighty eight u s d a is proposing to regulate only genetically engineered organisms or products which are plant pests or for which there is reason to believe are plant pests then went on u s d a believes that an organism or product is a plant passed is one if the donor recipient vector or victor regent of the genetically engineered organism or product comes from a member of one of the groups listed in section three forty datu that's all of the plants that are at issue in this case they all have plant pest constituents if then went on and said the first category which he said the agency believes is a plant pest are the ones that are at issue here there is another category of regulated articles where for other reasons a fist might determine they are plant pests or have reason to believe  category here is being regulated as a plant pest based on a fist determination that that's how it should be regulated until or unless it is proved to the agency that it is not a plant pest at which point it's deregulated but during the until unless that happens it's regulated as a plant passed so that's one of the three requirements a second requirement is that the ordinance that's an issue here the big island ordinance is regulating because in regulating in order to prevent the dissemination or introduction of the plant passed that's undoubtedly true here the entire ordinances point is to prevent the dissemination introduction of these plant pests no they say otherwise because they said well the reason we're doing that is different we're doing that in order to protect against pesticide harms or we're doing that in order to protect against cross pollination this preemption provision isn't interested in that second level reason so long as it's in order to prevent the dissemination or introduction of these plants and it undoubtedly is it doesn't matter what reason they've got for it so i mean i ask you in different ways so what's your position on whether the ordinance  let me address this from a just for second if i'm not answering you and i'm happy to pause but it does on its face appear to regulate plant pests that are not made with a plant pest constituent as well right and those are not regulated as plant pasts and we're not arguing that it is preempted to the extent it touches those but as we noted in our brief tour knowledge there aren't any and why anyways so in terms of the relevant plant pests that we're talking about preemption affect the current state scheme in your you know your honor because the state to this point at least has not chosen to try to regulate plant g e plants it doesn't single them out for any kind of regulation it doesn't single about for reporting for bans for anything of that sort so there's nothing to preempt right now in the state scheme if the state i agree that the state has authority qua state within its state scheme to attempt to do that kind of regulation if it did so we would think it would be preempted just the same the only a third requirement of the conflict preemption statute of course is that the ordinance is regulating the movement in interstate commerce of the planet issue and on that again we think that judge current got it right the reason is to first of all you've got plain language here which is the word movement is defined under the plant has pled protection act to include release into the environment and well it's a bit of an odd phrase release into the environment in interstate commerce certainly takes in the kinds of things that this ordinance is trying to regulate because they're trying to regulate for example if through paul and or through seeds being stuck in tractors or what have you these crops are being grown in a field that is a conventional organic field and therefore entering commerce in that way and they're trying to protect against what they view as those harms or the excess of here in california and you're talking about it  it's a little bit different but then again your honor when you're when you're talking about a plant that can grow in a neighboring field absent again strong regulation by this and other the regulation really is quite strong and qui rigorous if it enters that that next door neighbors form it it grows the plants that are being sold from hawaii by no means are being limited to sale within why they are sold interstate there's no quest about entering interstate co but there's another reason as well and this has to do with history because i'm understanding this term is made a whole lot easier understand where it comes from and that's that when three forty was first promulgated in the preamble if  addressed some comments that had come in that said well we don't understand how you can regulate mere releases into the environment because it seems from the statute you're only allowed to regulate imports exports and the like and if this took the position that the statute was broad enough to allow it to regulate releases into the environment even though that wasn't expressly defined within the term movement when congress amended and consolidated the statutes into the plant protection act congress added release into the environment into the definition of movement there's no way to read that other than to shore up a fuss is ability to regulate under the regulation of movement in interstate commerce prong a regulation of intrast planting that causes these sorts of m releases and could cause these releases into the environment the argument otherwise actually would strip a facade of its entire authority to regulate intrastate planting because under seven seven one t the same phrases used in under seven seven one one the same phrases used movement and interstate commerce to define what the agency's permitting authority is and so if you took my upper opponent's argument to heart atheists would like the authority to regulate intrastate planting of g e crops now that's not a tenable interpretation because when congress enacted the plant protection act it expressly incorporated the regulatory scheme that had preexisted and said that would can continue to be effective until changed or until or unless changed by congress the idea that congress implicitly it well the idea that congress in a statute like the plant protection act which was explicitly meant to enhance the authority of a focus took away all of the facilities already to conduct these field tests and have intrastate planting restrictions is really kind of beyond belief i don't even think my parents are really arguing that  that is the consequence of adopting their interpretation of movement in interstate commerce thank you  issue here with respect to the state employed preemption is that as judge current said in one of his orders and perhaps in both but they're equally applicable he said these plant related laws that the state has quote set out the state's role in identifying potentially harmful plants that they do but judge current wrongly concluded that because  state has a role the counties do not and that's the crux of this mr landale said that these are the kinds of concerns the state can regulate well and we agree but because  state can regulate does not mean that the county cannot there are mention of various statutes that are sort of kind of pointed to as potentially regulating but if the corn teen statute for example is the law that richardson requires that the court find exclusively govern genetically engineered crops why didn't george curry just say so he didn't and if it was the if it's the exclusive law governing genetically engineered crops where does that leave the noxious weed law clearly neither of them is exclusive which is what richardson requires  noxious weed law even cover gently engineered crops well we've we've explained in detail in our brief why the existing regulation in the department of agriculture would  preclude there's igniting agenda genetically engineered crop as a noxious weed it must be for example it must be capable of competing with cultivated crops for nutrients water or sunlight well these are a cultivated crops they don't compete with cultivated crops they are the crops that the noxious weed law was designed to protect they're simply not noxious weeds within the meaning of the noxious weed law could the department  of regulation that makes them noxious weeds perhaps if it hasn't and you know with respect to the quarantine statute this ordinance does not regulate the import or export of genetically engineered plants they're free to pass in and out of the state and in and out of the county they do it every day all this regulates is growing them within the county and the quarantine law is there's plenty of legislative history which we've cited in our brief which makes it clear that it's about importation it is not designed to regulate what you can grow so where is the hawaii case the supreme court that in any way supports the analysis that judge curran did there simply isn't one it doesn't comply with richardson europe doesn't support it i've already distinguished anime's who you know there's the only other case out there that anybody cites is the citizens utilities case but that is a case in which the state granted the public utilities commission exclusive authority over a very specific well defined field all public utilities there is there is no analogue here with the department of agriculture having exclusive well defined authority over genetically engineered crops or any relevant subject matter and in twos and utilities the county an act in an ordinance which clearly and directly conflicted with what the p u c had done making it impossible to comply with both which is something that the court pointed out as significant so there is no case in hawaii that supports judge kearns implied preemption analysis and the only other thing i want to say before you sit which is that the state has no scheme regulating genetically engineered plants we agree with that and we believe that because it does not there is no scheme to be preempting regulatory power over cross pollination it doesn't and this court from that second i'd like to deal with his it is true that the first trigger in the preemption clause is that the ordinance in question has to involve a regulation of an article and movement in interstate commerce now we can't separate movement which opposing counsel tried to do we agree that release environment kind of a movement really says something the environment you cannot release that from the purposes of phrase in interstate commerce commerce is defied in the regulations as trade traffic or other commerce the very definition of a regulated crop which is what it is you hear these feel drug crops is that they cannot be in first the only the first is three thousand miles away and the this is not even your state this is intercounty so the idea that somehow that this ordinance involves which he has to this is the original trigger of the preemption plot some house to involve an article that i separate movement from the propositional interstate commerce and there's no doubt that these articles under the ordinance are not in interstate commerce in the final thing i'd like to talk about and it's really important is the definition of regulated article which is in the definitions of three forty point one opposing counsel said somehow of the from the definition regulated article means that there are every regulated arculus per se a plan passed and therefore in the second prong of the preemption clause which says this we don't we preempted if you're dealing with a plant pest or noxious we miss it well it's doing a plant best because every regulator it was a plant pests or at least these ones that we're talking about but that's not true if you look at the definition is very clear that there are two categories at the end it's very clear and these are the two categories the only two categories of a regulator arkell are those which the administrator has determined is a plant peste or has reason to believe it's a plant pest or has reason to believe two categories so that your choice regulated are in every case because the bacterium involved in these plants has been disarmed and put into these genetically engineered corn plants one hundred seventeen times and hundreds of times they said no because they had reason to believe it might so so far if you look at those two categories of regulated articles on one side that have been determined by the administrator to be a plant pest zero plan test is simply false and it seems to me that be a lot about plain language being the intent of congress here and it seems to me what the other side actually like to do here is they would like to add to the series regulations they chose not to put regulated articles in there but only plant pest and noxious weeds and they also like to empty tate the term in interstate commerce from that and just say hey this applies to any plant that's in movement that