FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYNGENTA SEEDS, INC., a

Delaware corporation;

SYNGENTA HAWAII, LLC;

PIONEER HI-BRED

INTERNATIONAL, INC., an Iowa

corporation; AGRIGENETICS,

INC., a Delaware corporation;

BASF PLANT SCIENCE LP, 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.

No. 14-16833

D.C. No.

1:14-cv-00014-BMK
2 SYNGENTA SEEDS V. CTY. OF KAUAI

SYNGENTA SEEDS, INC., a

Delaware corporation;

SYNGENTA HAWAII, LLC;

PIONEER HI-BRED

INTERNATIONAL, 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-DefendantsAppellants.

No. 14-16848

D.C. No.

1:14-cv-00014-BMK

OPINION

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
SYNGENTA SEEDS V. CTY. OF KAUAI 3

Filed November 18, 2016

Before: Sidney R. Thomas, Chief Judge, and Consuelo M.

Callahan and Mary H. Murguia, Circuit Judges.

Opinion by Judge Callahan

SUMMARY*

Hawaii State Law / Preemption

The panel affirmed the district court’s conclusion that the

Hawaii Pesticides Law impliedly preempted Kauai County’s

Ordinance 960’s pesticide provisions, which regulate

pesticides and genetically engineered plants; and affirmed the

district court’s denial of defendants’ motion to certify the

implied preemption question to the Hawaii Supreme Court.

Ordinance 960 imposes pesticide notification

requirements and mandates “pesticide buffer zones.” Kauai

County Code § 22-23.5(a). Part III of the Hawaii Pesticides

Law regulates the use of pesticides, including where

pesticides may be applied. HRS § 149A-31-149A-37.

The panel applied the Hawaii Supreme Court’s

“‘comprehensive statutory scheme’ test,” Richardson v. City

& Cty. of Honolulu, 868 P.2d 1193, 1208 (Haw. 1994), to

decide plaintiffs’ field-preemption claim under HRS § 46-

1.5(13). First, the panel held that Ordinance 960’s pesticide

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 SYNGENTA SEEDS V. CTY. OF KAUAI

provisions and the Hawaii Pesticides Law addressed the same

subject matter. Next, the panel held that the State’s scheme

for the regulation of pesticides was comprehensive. Finally,

the panel held that the Hawaii legislature clearly intended for

the State’s regulation of pesticides to be uniform and

exclusive. The panel concluded that Ordinance 960’s

pesticide provisions were impliedlypreempted byHawaii law

and beyond the County’s power.

The panel held that certification to the Hawaii Supreme

Court was unnecessary because the State’s test for implied

state preemption was well-defined.

COUNSEL

David J. Minkin (argued), Jesse J. T. Smith, and Troy H.H.

Andrade, McCorriston Miller Mukai McKinnon LLP,

Honolulu, Hawaii, for Defendant-Appellant.

Paul H. Achitoff (argued), Earthjustice, Honolulu, Hawaii;

Sylvia Shih-Yau Wu and George A. Kimbrell, Center for

Food Safety, San Francisco, California; for IntervenorDefendants-Appellants.

Margery S. Bronster (argued), Donna C. Marron, and Rex Y.

Fujichaku, Bronster Fujichaku Robbins, Honolulu, Hawaii;

Christopher Landau (argued), Kirkland & Ellis LLP,

Washington, D.C.; Clair WongBlack and Paul Alston, Alston

Hunt Floyd & Ing, Honolulu, Hawaii; for PlaintiffsAppellees.
SYNGENTA SEEDS V. CTY. OF KAUAI 5

OPINION

CALLAHAN, Circuit Judge:

KauaiCounty passed Ordinance 960 to regulate pesticides

and genetically engineered (GE) plants. The Ordinance

requires commercial farmers to maintain “buffer zones”

between crops to which pesticides are applied and certain

surrounding properties, provide notifications before and after

applying pesticides, and file annual reports disclosing the

cultivation of GE crops. We must decide whether Ordinance

960’s pesticide provisions are impliedly preempted byHawaii

state law, as the district court held below.1 Applying the

Hawaii Supreme Court’s “‘comprehensive statutory scheme’

test,” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193,

1208 (Haw. 1994), we affirm.

I.

A. Plaintiffs’ farming operations on Kauai

Plaintiffs-Appellees Syngenta Seeds, Inc., Syngenta

Hawaii, LLC, Pioneer Hi–Bred International, Inc.,

Agrigenetics, Inc., and BASF Plant Science LPs are

companies that supply seed for GE plants. Plaintiffs grow a

variety of GE seed crops on Kauai, including corn, soybeans,

canola, and rice. As further explained in our concurrently

filed opinion in Atay v. County of Maui, No. 15-16466, such

GE crops have numerous important uses and play a major

role in our nation’s food supply. However, GE crops also

1 We address state preemption of Ordinance 960’s GE crop

notification requirement in a memorandum disposition filed concurrently

with this opinion.
6 SYNGENTA SEEDS V. CTY. OF KAUAI

present several well-documented economic and

environmental risks.

This case arises primarily from concern about Plaintiffs’

use of insecticides, herbicides, and fungicides (collectively

pesticides) in their farming operations on Kauai. They use

both general use pesticides (GUPs), which under federal and

state law may be applied by anyone in accordance with label

instructions, and restricted use pesticides (RUPs), which may

only be applied by applicators certified by the State or

persons under their direct supervision. See 7 U.S.C. § 136i. 

Pesticides are useful for controlling pests and thus increasing

crop yields, but their application can have detrimental effects

on humans and the environment. For example, with respect

to human health impacts, some studies have found that longterm exposure to some pesticides may increase the risks of

diseases, including cancer, autism, Parkinson’s disease, and

childhood leukemia. With respect to environmental impacts,

studies have found that some pesticides can harm insects and

native plants, alter soil ecology, and increase the number and

prevalence of herbicide-resistant pests.

Kauai residents have reported experiencing medical

symptoms due to contact with pesticides applied on

Plaintiffs’ farms. Additionally, a University of Hawaii study

detected pesticides in indoor and outdoor air samples

collected at a Kauai middle school, albeit at concentrations

“well below health concern exposure limits or applicable

screening levels.”

B. Kauai County Ordinance 960

In 2013, the Kauai CountyCouncil passed Ordinance 960

in order to “inform the public, and protect the public from any
SYNGENTA SEEDS V. CTY. OF KAUAI 7

. . . negative impacts on the health and natural environment of

the people and place of the County” associated with

commercial farming operations, including the use of

pesticides. Kauai County Code (KCC) § 22-23.2.2 Relevant

here, the Ordinance imposes several requirements on

“commercial agricultural entities” (CAEs) in connection with

the application of RUPs in Kauai.3

The Ordinance’s notification provisions require CAEs to

make notifications before and after applying RUPs. Id. § 22-

23.4(a). Specifically, the “worker protection” provision

requires CAEs to post warning signs that comply with U.S.

Environmental Protection Agency guidelines twenty-four

hours prior to the application of a pesticide, during

application, and after application for the “restricted-entry

period” established by the EPA. Id. § 22-23.4(a)(1). The

“Good Neighbor” provision requires CAEs to send weekly

“Good Neighbor Courtesy Notices” to interested beekeepers

and people who own or occupy property within 1,500 feet of

the property where the pesticide will be applied. The notices

must address the pesticide to be used, its active ingredient,

and the date, time, and field number of its use. Id. § 22-

23.4(a)(2). Following the application of RUPs, the Ordinance

also requires CAEs to submit to Kauai’s Office of Economic

Development and post online weekly “public disclosure

2 The bill was originally introduced in June 2013 as Bill 2491, enacted

as Ordinance 960, and codified as KCC § 22-23.1–23.8 (2014).

3 A CAE is defined as “a firm, corporation, association, partnership,

or any organized group of persons . . . engaged in growing, developing,

cultivating, or producing agricultural products.” KCC § 22-23.3. The

pesticide provisions only apply to CAEs that purchased or used in excess

of five pounds or fifteen gallons of any single RUP during the prior

calendar year.
8 SYNGENTA SEEDS V. CTY. OF KAUAI

reports” “compiling the actual application of all pesticides

during the prior week.” Id. § 22-23.4(a)(3). These reports

must detail the date and time of application, the field number

and total acreage to which the pesticide was applied, the

pesticide’s trade name, EPA registration number, and active

ingredient, the gallons or pounds of the pesticide used, and

the temperature, wind direction, and wind speed at the time

of application. Id.

In addition to these notification requirements, Ordinance

960 requires CAEs to establish “buffer zones” between crops

to which RUPs are applied and certain surrounding

properties, such as schools and waterways.4

Id. § 22-23.5(a). 

The buffer zone’s size varies depending on the type of

neighboring property.

Finally, Ordinance 960 requires the County to complete

an Environmental and Public Health Impact Study (EPHIS)

to address “environmental and public health questions related

to large-scale commercial agricultural entities utilizing

pesticides and genetically modified organisms.” Id. § 22-

23.6. The EPHIS may recommend “possible actions the

County may take in order to address any significant effects,

public health impacts, or both.” Id. § 22-23.6.

“[A]ny person, firm, or corporation” violating Ordinance

960 is subject to a civil fine of $10,000 to $25,000 per day,

per violation. Id. § 22-23.7(a). Additionally, violators are

4 While subsections (1) and (2) suggest that “no crops” may be grown

in the buffer zones, prefatory section (a) and the provision’s title make

clear that the provision does not bar all crops from being grown in buffer

zones, but only those to which pesticides are applied. KCC § 22-23.5(a).
SYNGENTA SEEDS V. CTY. OF KAUAI 9

guilty of a misdemeanor punishable by a fine of up to $2,000

or a year imprisonment for each offense. Id. § 22-23.7(b).

After the County Council passed Ordinance 960, the

Mayor of Kauai vetoed it. The Mayor explained that he

“agree[d] fully with the general intent of [the] bill,” including

the pesticide notification and EPHIS provisions. However, he

did not support the buffer-zone provision and, citing a legal

opinion by the County Attorney, concluded “that Kauai does

not currently have the legal authority to enact most of what is

contained” in the bill. On November 16, 2013, the County

Council overrode the veto and enacted Ordinance 960 into

law.

C. Procedural History

On January 10, 2014, Plaintiffs sued the County of Kauai

in district court challenging Ordinance 960. As subsequently

amended, Plaintiffs’ complaint asserted thirteen claims for

relief and sought a declaratory judgment that the Ordinance

is invalid under federal, state, and county law, and an

injunction against its enforcement. Relevant here, the first

claim asserted that state law impliedly preempts the

Ordinance’s pesticide provisions. A coalition of Ka Makani

Ho’opono, the Center for Food Safety, the Pesticide Action

Network North America, and the Surfrider Foundation

intervened on behalf of the County.

On August 25, 2014, the district court granted in part and

denied in part the cross-motions for summary judgment. 

Syngenta Seeds, Inc. v. Cty. of Kauai, No. CIV. 14-00014

BMK, 2014 WL 4216022 (D. Haw. Aug. 25, 2014). While

emphasizing that its decision “in no way diminishes the

health and environmental concerns of the people of Kauai,”
10 SYNGENTA SEEDS V. CTY. OF KAUAI

the court concluded that Ordinance 960’s pesticide provisions

are impliedly preempted by state law. Id. at *1. The court

acknowledged that the County has authority under state law

to regulate agricultural activities, id. at *3–4, but found the

pesticide provisions preempted because theyaddress the same

subject matter regulated bya comprehensive statutoryscheme

that the Hawaii legislature intended to be uniform and

exclusive. Id. at *7–9. The district court declined to certify

the implied preemption question to the Hawaii Supreme

Court. Id. at *15. The County and Defendant-Intervenors

(collectively Defendants) timely appealed. We have

jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, the County and Defendant-Intervenors

contend that the district court erred in finding Ordinance

960’s pesticides provisions impliedly preempted by state law. 

They also argue that the district court erred in denying their

motion to certify the implied preemption issue to the Hawaii

Supreme Court and, alternatively, ask us to certify the issue. 

We review the district court’s grant of summary judgment on

preemption grounds de novo, Wolfe v. BNSF Ry. Co., 749

F.3d 859, 863 (9th Cir. 2014), and a decision not to certify a

state-law question for abuse of discretion, Riordan v. State

Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th Cir. 2009).

A. Implied state preemption analysis under Hawaii law

The state preemption question before us stems from HRS

§ 46-1.5(13), which delegates to counties “the power to enact

ordinances deemed necessary to protect health, life, and

property . . . on any subject or matter not inconsistent with, or

tending to defeat, the intent of any state statute . . .
SYNGENTA SEEDS V. CTY. OF KAUAI 11

disclos[ing] an express or implied intent that the statute shall

be exclusive or uniform throughout the State.”5 The Hawaii

Supreme Court has ruled that a county ordinance issued

pursuant to section 46-1.5(13) is invalid if it conflicts with

state law or legislates in a field that the legislature reserved

for uniform and exclusive state regulation. Richardson, 868

P.2d at 1209. Only the second type of preemption, called

field preemption, is at issue here: Plaintiffs argue that

Ordinance 960 impermissibly regulates pesticides, which is

a subject that the Hawaii legislature reserved for exclusive

treatment by the State.

Hawaii courts apply a “‘comprehensive statutory scheme’

test” to decide field-preemption claims under HRS § 46-

1.5(13). Pac. Int’l Servs. Corp. v. Hurip, 873 P.2d 88, 94

(Haw. 1994). 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, 868 P.2d at 1208–09; see also Citizens

Utils. Co. v. Cty. of Kauai, 814 P.2d 398, 400 (Haw. 1991). 

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. See, e.g., Stallard v. Consolidated Maui, Inc., 83

P.3d 731, 736 (Haw. 2004); Richardson, 83 P.3d at 1209.

The Hawaii Supreme Court has emphasized that the

“critical determination to be made” is “whether the statutory

5 The Hawaii Supreme Court has held that the law contains a drafting

error and must be read as modified above. Richardson, 868 P.2d at 1207.
12 SYNGENTA SEEDS V. CTY. OF KAUAI

scheme at issue indicate[s] a legislative intention to be the

exclusive legislation applicable to the relevant subject

matter.” Hurip, 873 P.2d at 94. Thus, even where a local law

addresses a subject covered by a comprehensive and uniform

state statutory scheme, the local law is not preempted where

the state scheme does not evince the legislature’s intent to be

exclusive. Id. (finding that the legislature intended a state

law only “to establish a minimum level of insurance

protection”).

The Parties dispute how clear of a showing of legislative

intent to preempt is required for a local law to be deemed

invalid. Plaintiffs contend that, unlike federal law, there is no

presumption against preemption under state law because

Hawaii counties only have authority delegated to them by the

State. Defendants contend that there is a presumption against

state preemption of local laws, and thus the legislature’s

intent to preempt must be “clear” in order for a local law to

fail. They argue that this presumption is particularly strong

where, as here, a local government regulates land use or

another area over which it traditionally has exercised control.

The Hawaii Supreme Court has not squarely addressed

whether there is a presumption against state preemption. It is

true that there is no presumption of dual sovereignty between

the State and the counties, because counties, unlike states,

lack inherent or residual authority. In re Application of

Anamizu, 481 P.2d 116, 118 (Haw. 1971). However, the

Hawaii Supreme Court has presumed that a county’s exercise

of police power is within its delegated authority so long as the

legislature did not “clearly intend[] to preempt the field of

regulation.” Haw. Gov’t Employees’ Ass’n v. Maui, 576 P.2d

1029, 1038 (Haw. 1978). Thus, where a county’s exercise of

police power is at issue, the showing of legislative intent
SYNGENTA SEEDS V. CTY. OF KAUAI 13

necessary for state law to preempt local law under Hawaii’s

preemption analysis is similar to, if perhaps not quite as

demanding as, the showing required for purposes of federal

preemption, a “‘clear and manifest purpose’ to pre-empt local

authority.” See Wisc. Public Intervenor v. Mortier, 501 U.S.

597, 607 (1991).

The Parties also dispute whether the Hawaii

Constitution’s conservation clause alters the preemption

analysis where local laws aimed at conserving and protecting

the environment are at issue. The County contends that

Article XI, § 1’s directive that “the State and its political

subdivisions shall conserve and protect Hawaii’s natural

beauty and all natural resources” compels it to regulate

pesticide use, and cannot be overcome by state statute. 

Defendants support their argument with Robinson Township

v. Pennsylvania, where the Pennsylvania Supreme Court

found that a state law expressly preempting local oil and gas

regulations impermissibly abrogated “constitutional

commands regardingmunicipalities’ obligations and duties to

their citizens” under the Pennsylvania Constitution. 83 A.3d

901, 977 (Pa. 2013).

We are not persuaded. Hawaii law is clear that counties

lack inherent authority under the Hawaii Constitution. Haw.

Gov’t Employees’ Ass’n, 576 P.2d at 1038; In re Application

of Anamizu, 481 P.2d at 118. It follows that counties have no

power to conserve the public trust unless the State has

delegated to them the authority to do so. As noted, under

HRS § 46-1.5(13), counties are not permitted to use their

police power to enact ordinances that conflict with state law

or intrude upon areas expressly or impliedly reserved for state

regulation. In other words, the conservation clause may

obligate counties to use their authority to conserve public-
14 SYNGENTA SEEDS V. CTY. OF KAUAI

trust resources, but it does not permit counties to exercise

power that the State has not granted them. The provision

therefore is irrelevant to the question presented in this case:

whether Ordinance 960 is beyond the County’s police power

under HRS § 46-1.5(13) because it is impliedly preempted by

state law. We turn to that question now.

B. The Hawaii Pesticides Law preempts Ordinance 960’s

pesticide provisions.

Under Hawaii’s comprehensive statutory scheme test, the

question presented is whether Ordinance 960’s pesticides

provisions cover the same subject matter as state law that

creates a comprehensive regulatory scheme and discloses

clear legislative intent to be uniform and exclusive of

supplemental local regulation.

1. Ordinance 960’s pesticide provisions and the

Hawaii Pesticides Law address the same subject

matter.

Ordinance 960 imposes pesticide notification

requirements and mandates “pesticide buffer zones.” KCC

§ 22-23.5(a). As detailed below, the Hawaii Pesticides Law

and its implementing rules also regulate pesticides, including

by imposing notification requirements and conditions of use,

such as locations of permissible use. See HRS Ch. 149A.

Part III of the Hawaii Pesticides Law regulates the use of

pesticides, including where pesticides may be applied. HRS

§§ 149A-31–149A-37. For example, HRS § 149A-31 lists

“prohibited acts.” The provision prohibits use “of any

pesticide in a manner inconsistent with its label,” with several

enumerated exceptions. The provision makes clear that
SYNGENTA SEEDS V. CTY. OF KAUAI 15

pesticide labels may specify “a crop, animal, or site” to which

pesticides may be applied. Id. § 149A-31(1)(B) (emphasis

added). The provision also prohibits application of RUPs

except by certified pesticide applicators or someone under

their direct supervision, id. § 149A-31(3), and bars

application of any pesticides through particular devices, id.

§ 149A-31(6).

This list of prohibited acts in Part III is not exhaustive. 

Rather, section 149A-32.5 vests the chairperson of the State’s

Board of Agriculture with the authority to “suspend, cancel,

or restrict the use of certain pesticides or specific uses of

certain pesticides when the usage is determined to have

unreasonable adverse effects on the environment.” See also

id. § 149A-19 (directing the Board of Agriculture to

“establish a system of control over the distribution and use of

certain pesticides and devices purchased by the consuming

public”). Section 149A-33 also authorizes the Hawaii

Department of Agriculture to enact rules to carry out the

Hawaii Pesticides Law. This authority includes but is not

limited to the power to “establish limitations and conditions

for the application of pesticides” by equipment and to

“establish, as necessary, specific standards and guidelines

which specifythose conditions which constitute unreasonable

adverse effects on the environment.” Id. § 149A-33.

Pursuant to this authority, the Department of Agriculture

has enacted additional rules addressing pesticide use,

including locations of use. A Department of Agriculture rule

requires “directions for use” on labels to address, among

other things, “[r]equired intervals between application and

harvest of food or feed crops,” “rotational crop restrictions,”

and “[w]arnings as required against use on certain crops,
16 SYNGENTA SEEDS V. CTY. OF KAUAI

animals, objects, or in or adjacent to certain areas.” HAR

§ 4-66-23(9)(A), (C).

As these provisions show, Hawaii law addresses the same

subject matter as Ordinance 960’s buffer-zone provision: 

permissible areas of pesticide application.

The Hawaii Pesticides Law also addresses the specific

subject of notification and record-keeping requirements. For

example, the law establishes notification and record-keeping

requirements in connection with the sale of pesticides. HRS

§ 149A-15.5 requires retailers to “post a warning sign with

respect to the sale of pesticides” to address “proper handling,

storage, and disposal of all pesticides sold” and “[e]mergency

telephone numbers to call in case of poisoning from the

pesticides.” Persons permitted to sell RUPs are required to

“keep records of the individual sales of these pesticides.” Id.

§ 149A-17. Under the Department of Agriculture’s rules,

licensed dealers are further required to “keep a record of each

sale, distribution, delivery, theft, spill, or any other activity

affecting the amount of [RUPs] and pesticides requiring an

annual permit.” HAR § 4-66-53.

State law also establishes notification and warning

requirements in connection with the application of pesticides. 

In addition to requiring “warnings and precautionary

statements” on labels, see HAR §§ 4-66-17, 4-66-19, a

Department of Agriculture rule requires that “[c]ommercial

applicators applying any pesticide in agricultural operations

must . . . furnish a written record . . . to the agricultural
SYNGENTA SEEDS V. CTY. OF KAUAI 17

employer before the pesticide is applied,” id. § 4-66-62(c).6

The Department of Agriculture has also enacted reporting and

approval requirements before RUPs may be applied by

aircraft. Id. § 4-66-64.

State law addresses post-application record keeping as

well. The legislature delegated to the Department of

Agriculture the authority to “establish, as necessary, record

keeping requirements for pesticide use by applicators.” HRS

§ 149A-33. Pursuant to this authority, the agency enacted

rules requiring pesticide applicators to “keep records of all

applications of [RUPs] applied.” HAR § 4-66-62(a). These

reports must contain fourteen categories of information. Id.

§ 4-66-62(b). Section 149A-31.2 further directs the

Department of Agriculture to publish online RUP “records,

reports, or forms submitted” to it, with limited exceptions.

As these provisions show, Hawaii law addresses the same

subject matter as Ordinance 960’s pesticide notification

provisions: warnings regarding the application of RUPs.

2. The State’s scheme for the regulation of pesticides

is comprehensive.

Defendants argue that even if Hawaii law and Ordinance

960 address the same subject matter, the state law’s treatment

of pesticides is not comprehensive. They contend that the

6 This notice must address “(1) The specific location and description

of the treated area; (2) Time and date of application; (3) Product name,

EPA registration number, and active ingredient(s); (4) Restricted entry

interval; (5) Whether posting and oral notification are required; and (6)

Any other product-specific requirements on the product labeling

concerning protection of workers or other persons during or after

application.” Id.
18 SYNGENTA SEEDS V. CTY. OF KAUAI

state requirements are “procedural and remedial,” while

Ordinance 960 is “substantive and prophylactic.”

Even if regulatory fields may be parsed so finely in

determining whether their occupation by the State is

comprehensive, Defendants’ argument fails. State law

imposes “substantive and prophylactic” measures. For

example, state law regulates a pesticide’s effects on human

health and the environment through labeling and licensing

requirements. See, e.g., HRS §§ 149A-11, 149A-31. As

mentioned, “directions for use” on pesticide labels must

include “[l]imitations or restrictions on use required to

prevent unreasonable adverse effects on humans or the

environment,” including “[w]arnings as required against use

. . . in or adjacent to certain areas.” HAR § 4-66-23(9). Such

restrictions are not simply procedural or informational; they

impose restrictions on pesticide use the violation of which

may result in civil and criminal penalties, as well as the

suspension or revocation of licenses for pesticide application

and sale. See, e.g., HRS § 149A-41. State law also requires

pre-application warnings, which, like use and licensing

regulations, are clearly “prophylactic” in nature. See HAR

§§ 4-66-62(c), 4-66-64.

More generally, the state statutory scheme’s breadth of

treatment of pesticides demonstrates its comprehensiveness. 

The Hawaii Pesticides Law and its implementing rules

address the entire life cycle of pesticides, including

research/experimentation, transportation, storage, sale, use,

and disposal. See, e.g., HRS § 149A-37 (addressing research

and experimental work); id. §§ 149A-11–149A-23

(addressing transportation, storage, and sale); id. §§ 149A31–37 (addressing use); HAR § 4-66-54 (addressing

disposal). State law also creates a system for investigation
SYNGENTA SEEDS V. CTY. OF KAUAI 19

and enforcement of violations. See HRS §§ 149A-21, 14A36, 149A-41; HAR §§ 4-66-32.1, 4-66-66.1.

We find that the state’s statutory scheme for pesticides is

comprehensive.

3. The legislature clearly intended for the State’s

regulation of pesticides to be uniform and

exclusive.

Finally, it is clear that the Hawaii legislature intended for

the State’s regulation of pesticides to be uniform and

exclusive of additional, local rules.

The pervasiveness of the statutory scheme, which

regulates in detail the full life cycle of pesticides, creates a

reasonable inference that the legislature left no room for

counties to impose further regulations. See In re Application

of Anamizu, 481 P.2d at 119 (finding legislative intent to

preempt “apparent from the pervasiveness of the . . . statutory

scheme”). The Hawaii Pesticides Law’s pervasiveness

differentiates the law from the federal pesticides law, the

Federal Insecticide, Fungicide, andRodenticide Act (FIFRA),

which the Supreme Court found did not preempt local laws in

Mortier. In Mortier, the Supreme Court observed that FIFRA

“leaves substantial portions of the field vacant, [including] an

affirmative permit scheme for the actual use of pesticides.” 

501 U.S. at 613. By contrast, the Hawaii Pesticides Law

establishes a permit scheme for actual use and does not leave

vacant any other substantial part of the field of pesticides

regulation.

Moreover, the Hawaii legislature stated its intention for

the Hawaii Pesticides Law to be uniform in HRS § 149A-19,
20 SYNGENTA SEEDS V. CTY. OF KAUAI

which is entitled “Determination; rules; uniformity.” To

achieve the stated goal of uniformity, the legislature directed

the Board of Agriculture to “adopt rules applicable to and in

conformity with the primary standards established by this

chapter or as prescribed byFIFRA with respect to pesticides.” 

HRS § 149A-19(c).7 The legislature also expressed the goal

of uniformity in directing the Department of Agriculture to

cooperate with other state agencies and “the federal

government for the purpose of carrying out this chapter and

securing uniformity of rules” governing pesticides. HRS

§ 149A-23 (emphasis added).

The Hawaii legislature’s goal of establishing a uniform

system of pesticide control and its delegation, in furtherance

of this goal, of rulemaking and licensing authority to the

Department of Agriculture clearly evince an intent to preempt

local regulation. As the Hawaii Supreme Court has

explained, such a state statutory scheme cannot reasonably be

interpreted to allow for supplemental local regulation because

differing local laws would defeat the goal of uniformity. For

example, in In re Application of Anamizu, the Hawaii

Supreme Court concluded that a city ordinance regulating

contractors was preempted by a state statutory scheme that

“vested [a state board] with broad powers relative to the

licensing and regulating of contractors.” 481 P.2d at 118. 

The court reasoned that “[t]o hold otherwise would be to

allow the intercity flow of contracting services to be

7 This provision is contained in Part II of the Hawaii Pesticides Law,

which focuses on pesticide sales. However, the provision also addresses

the Board of Agriculture’s authority to, among other things, “establish a

system of control over the . . . use of certain pesticides and devices.” Id.

§ 149A-19(a)(1) (emphasis added). Therefore, the fact that the legislature

did not expressly repeat its goal of uniformity in Part III, which focuses

on pesticide use, is without significance.
SYNGENTA SEEDS V. CTY. OF KAUAI 21

impaired, thereby severely diluting the value of a uniform

state licensing system” that the legislature sought to realize. 

Id. at 119.

Like the law at issue in Application of Anamizu, the

Hawaii Pesticides Law creates a comprehensive statutory

scheme, commits rulemaking and licensing authority to carry

out the scheme to a state agency, and discloses a goal of

uniformity. Moreover, the statute and the Department of

Agriculture’s implementing rules address the specific

subjects addressed by Ordinance 960—pesticide notification

requirements and conditions of permissible use, including

locations of use. In these circumstances, interpreting the

Hawaii Pesticides Law to allow supplemental local

regulations would impermissibly undermine the legislature’s

express goal of uniformity.

We note that the Hawaii Pesticides Law does allow for

local variations in the regulation of pesticides. However,

further evidencing an intent that the State’s control be

exclusive, the legislature directs the Department of

Agriculture to address the need for any local variations. For

example, HRS § 149A-22, gives the Board of Agriculture

“authority to adopt rules . . . to develop and implement state

programs for registration of pesticides for special local

needs.” This provision further distinguishes the Hawaii

Pesticides Law’s preemptive effect from FIFRA’s. FIFRA

and its implementing regulations expressly allow states to

impose additional restrictions or authorize additional uses of

pesticides “to meet special local needs.” 7 U.S.C. § 136v. 

Unlike FIFRA, the Hawaii Pesticides Law commits this role

to the Department of Agriculture, while providing counties

with avenues for input into the agency’s regulatory process. 

See HRS § 26-16 (establishing the Board of Agriculture and
22 SYNGENTA SEEDS V. CTY. OF KAUAI

specifying that it will include residents of Hawaii, Maui, and

Kauai); HRS § 149A-22 (authorizing the Board of

Agriculture “to adopt rules . . . to develop and implement

state programs for registration of pesticides for special local

needs and issuance of experimental use permits”).

Our conclusion that the legislature intended for the

Hawaii Pesticides Law to be uniform and exclusive of state

control is not undermined by the DOA’s power “to cooperate

with and enter into agreements with any agency of the State,

the federal government, or any other agency” in carrying out

the law. Id. § 149A-35. This provision does not authorize

counties to issue supplemental regulations of pesticides. 

Rather, read in context of the larger statutory scheme, which

clearly demonstrates legislative intent to create a uniform

system of pesticide regulation administered by the

Department of Agriculture, we interpret the provision to

authorize the counties to assist in enforcing regulations of

pesticides established by the State.8

Nor do Intervenors’ arguments based on Hawaii’s

litigating position in Mortier and legislative inaction

undermine our interpretation of the Hawaii Pesticides Law’s

preemptive effect. Intervenors argue that an amicus brief

filed by Hawaii in Mortier evidences that the State never

intended to prevent counties from regulating pesticides. See

8 Similarly, Intervenors stretch too far in arguing that the use of the

term “any law” rather than “this chapter” or “state or federal law” in a

provision addressing the suspension and revocation of permits “must be

assumed to include county law.” See HRS § 149A-18 (“Any permit . . .

may be suspended or revoked by the department . . . for violation of . . . 

any law or rule pertaining to the sale of pesticides.”). Read in context,

“any law” cannot reasonably be read to show legislative intent to allow for

local pesticide regulation.
SYNGENTA SEEDS V. CTY. OF KAUAI 23

Mortier, No. 89-1905, 1991 WL 11007857 (Appellate Br.)

(Feb. 28, 1991). The litigating position of the Hawaii

attorney general in Mortier, however, is of little or no

relevance to the preemptive effect of the Hawaii Pesticides

Law. The brief was joined by ten other states and did not

interpret the preemptive effect of Hawaii law. Rather, the

brief argued that FIFRA leaves room for state and local

regulation of pesticides, a point that is not disputed.

Intervenors also argue that Hawaii’s legislative inaction

following Mortier demonstrates the absence of legislative

intent to preempt local regulation of pesticides. Following

the Supreme Court’s decision in Mortier, bills to preempt

local pesticide regulation were introduced in the Hawaii

House and Senate. Intervenors contend that the fact that the

Hawaii legislature did not pass the bills, unlike the

legislatures of many other states, undermines any inference

of preemptive intent from existing law.

In Hurip, the Hawaii Supreme Court relied on postenactment legislative history in assessing legislative intent. 

873 P.2d at 96–97. However, Hurip relied on the legislative

history of an amendment to a state law, not on post-enactment

legislative inaction. The U.S. Supreme Court and the Hawaii

Supreme Court have found the second type of evidence

generally “lacks persuasive significance” because “several

equallytenable inferences may be drawn from such inaction.” 

Cent. Bank of Denver, N.A. v. First Interstate Bank of

Denver, N.A., 511 U.S. 164, 187 (1994); Richardson, 868

P.2d at 1211 n.25 (finding a “long history of considering, and

rejecting, proposed bills . . . merely begs the question”); Tax

Appeal of Dir. of Taxation v. Med. Underwriters of Cal., 166

P.3d 353, 365 n.11 (Haw. 2007) (“[L]egislative inaction is

not a cogent expression of legislative intent.”). No
24 SYNGENTA SEEDS V. CTY. OF KAUAI

circumstances endow the Hawaii legislature’s inaction with

significance here.

In sum, we find that the Hawaii Pesticides Law

comprehensively regulates pesticides and creates a clear

inference of legislative intent to preempt local regulations of

pesticides. Accordingly, applying Hawaii’s comprehensive

statutory scheme test, we hold that Ordinance 960’s pesticide

provisions are impliedly preempted by Hawaii law and

beyond the County’s power under HRS § 46-1.5(13).

C. The district court did not abuse its discretion in

denying Defendants’ motion to certify the preemption

issues to the Hawaii Supreme Court.

Defendants argue that the district court erred in declining

to certify the state implied preemption questions presented to

the Hawaii Supreme Court. Alternatively, Defendants ask us

to certify the implied preemption questions.

We find that the district court did not abuse its discretion

in denying Defendants’ motion to certify. We similarly find

that while the Hawaii Supreme Court has not applied its

preemption test to the specific laws at issue, certification is

unnecessary because the State’s test for implied state

preemption is “rather well-defined.” Puyallup Indian Tribe

v. Port of Tacoma, 717 F.2d 1251, 1263 n.14 (9th Cir. 1983);

see also Pai 'Ohana v. United States, 875 F. Supp. 680, 700

(D. Haw. 1995), aff’d sub nom. 'Ohana v. United States, 76

F.3d 280 (9th Cir. 1996) (“[W]here there is sufficient state

law to enable this court to make an informed decision on [the]

issues certification is inappropriate.”) (internal quotation

marks omitted).
SYNGENTA SEEDS V. CTY. OF KAUAI 25

III.

We affirm the district court’s conclusion that the Hawaii

Pesticides Law impliedly preempts Ordinance 960’s pesticide

provisions. We affirm the district court’s conclusion that

Hawaii law impliedly preempts Ordinance 960’s GE crop

reporting provision in a concurrently filed memorandum

disposition. We also affirm the district court’s denial of

Defendants’ motion to certify.

AFFIRMED.