FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALIKA ATAY; LORRIN PANG; MARK

SHEEHAN; BONNIE MARSH; LEI’OHU

RYDER; SHAKA MOVEMENT,

(Sustainable Hawaiian Agriculture

for the Keiki and the ‘Aina)

Movement,

Plaintiffs-Appellants,

v.

COUNTY OF MAUI; MONSANTO

COMPANY; ROBERT ITO FARM, INC.;

HAWAII FARM BUREAU FEDERATION,

MAUI COUNTY; MOLOKAI CHAMBER

OF COMMERCE; AGRIGENETICS, INC.;

CONCERNED CITIZENS OF MOLOKAI

AND MAUI; FRIENDLY ISLE AUTO

PARTS & SUPPLIES, INC.; NEW

HORIZON ENTERPRISES, INC., DBA

Makoa Trucking and Services;

HIKIOLA COOPERATIVE; DOW

AGROSCIENCES LLC; JOHN DOES

1–10; JANE DOES 1–10; DOE

PARTNERSHIPS 1–10; DOE

CORPORATIONS 1–10; DOE

GOVERNMENT ENTITIES 1–10,

Defendants-Appellees.

No. 15-16466

D.C. No.

1:14-cv-00582-

SOM-BMK
2 ATAY V. COUNTY OF MAUI

ROBERT ITO FARM, INC.; HAWAII

FARM BUREAU FEDERATION, MAUI

COUNTY, “Maui Farm Bureau”;

MOLOKAI CHAMBER OF COMMERCE;

AGRIGENETICS, INC., DBA Mycogen

Seeds; MONSANTO COMPANY;

CONCERNED CITIZENS OF MOLOKAI

AND MAUI; FRIENDLY ISLE AUTO

PARTS & SUPPLIES, INC.; NEW

HORIZON ENTERPRISES, INC., DBA

Makoa Trucking and Services;

HIKIOLA COOPERATIVE,

Plaintiffs-Appellees,

v.

COUNTY OF MAUI,

Defendant-Appellee,

ALIKA ATAY; LORRIN PANG; MARK

SHEEHAN; BONNIE MARSH; LEI’OHU

RYDER; SHAKA MOVEMENT,

Intervenor-Defendants-Appellants.

No. 15-16552

D.C. No.

1:14-cv-00511-

SOM-BMK

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief Judge, Presiding

Argued and Submitted June 15, 2016

Honolulu, Hawaii

Filed November 18, 2016
ATAY V. COUNTY OF MAUI 3

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

Callahan and Mary H. Murguia, Circuit Judges.

Opinion by Judge Callahan

SUMMARY*

Preemption

The panel affirmed the district court’s summary judgment

and its dismissal in two related actions pertaining to an

ordinance voted into law by Maui citizens which banned the

cultivation and testing of genetically engineered plants. 

The panel first held that the proponents of the Maui ballot

initiative and other appellants had established Article III

standing based on the allegations of five individual residents

who alleged that genetically engineered farming operations

threatened economic harm to their farms. The panel further

held that the district court did not err by denying the

proponents’ motion to remand their action to state court and

did not err by denying the proponents’ request for Rule 56(d)

discovery.

The panel held that the Maui ordinance is expressly

preempted by the Plant Protection Act, 7 U.S.C. § 7756(b), to

the extent that it bans genetically engineered plants that the

U.S. Animal and Plant Health Inspection Service regulates as

plant pests. The panel held that the ban is not impliedly

* 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 ATAY V. COUNTY OF MAUI

preempted by the Plant Protection Act in its application to

geneticallyengineered crops that the Animal and Plant Health

Inspection Service has deregulated, but is impliedly

preempted in this application by Hawaii’s comprehensive

state statutory scheme for the regulation of potentially

harmful plants. 

COUNSEL

A. Bernard Bays (argued), Leinaala L. Ley, Michael C.

Carroll, and Karin L. Holma, Bays Lung Rose & Holma,

Honolulu, Hawaii, for Appellants.

Richard P. Bress (argued), Matthew J. Glover, Jonathan Y.

Ellis, Andrew D. Prins, and Philip J. Perry, Latham &

Watkins LLP, Washington, D.C.; Margery S. Bronster

(argued) and Rex Y. Fujichaku, Bronster Fujichaku Robbins,

Honolulu, Hawaii; Christopher Landau, Kirkland & Ellis

LLP, Washington, D.C.; Nickolas A. Kacprowski and Paul D.

Alston, Alston Hunt Floyd & Ing, Honolulu, Hawaii; for

Appellees.

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

Food Safety, San Francisco, California; Summer Kupau-Odo

and Paul H. Achitoff, Earthjustice, Honolulu, Hawaii; for

Amici Curiae Center for Food Safety, Moms on a Mission

(MOM) Hui, Moloka‘I Mahi‘ai, and Gerry Ross.

Stanley H. Abramson, Karen Ellis Carr, and Kathleen R.

Heilman, Arent Fox LLP, Washington, D.C., for Amicus

Curiae Biotechnology Innovation Organization.
ATAY V. COUNTY OF MAUI 5

OPINION

CALLAHAN, Circuit Judge:

The citizens of Maui County voted into law an ordinance

banning the cultivation and testing of genetically engineered

(GE) plants. We must decide whether the ban is preempted

by federal and state law, as the district court held below. We

hold that the ordinance is expressly preempted by the Plant

Protection Act, 7 U.S.C. § 7756(b), to the extent that it bans

GE plants that the U.S. Animal and Plant Health Inspection

Service (APHIS) regulates as plant pests. We hold that the

ban is not impliedly preempted by the Plant Protection Act in

its application to GE crops that APHIS has deregulated, but

is impliedly preempted in this application by Hawaii’s

comprehensive state statutory scheme for the regulation of

potentially harmful plants. We therefore affirm.

I.

A. Background regarding GE crops and their cultivation

on Maui

Appellees include farmers and other agricultural workers,

a farmer’s cooperative, local businesses, Maui citizens, and

several companies—including Monsanto Company and

Agrigenetics, Inc.—that supply seed for GE plants. 

Monsanto and Agrigenetics own or lease thousands of acres

of farmland in Maui County, where they farm GE seed to be

used by farmers around the world and conduct field tests of

GE plants regulated by APHIS, which is an agency in the

U.S. Department of Agriculture. Hawaii’s temperate climate

and year-round growing season provide excellent conditions

for farming and testing GE seeds and crops, which
6 ATAY V. COUNTY OF MAUI

Appellants—citizens and an organization concerned aboutthe

effects of GE crops and pesticides—say have made Maui

“‘ground zero’ for the testing and development of GE crops.” 

See Biotechnology Regulatory Services, APHIS, USDA

Regulation of Biotechnology Field Tests in Hawaii,

1 (Feb. 2006), http://www.co.maui.hi.us/DocumentCenter/

View/94680 (explaining that “[b]ecause of Hawaii’s tropical

climate . . . the State has become an attractive location for

field tests of a variety of biotech crops”).

GE crops are genetically modified to enhance desirable

traits, including resistance to diseases, pests, and pesticides,

nutritional value, shelf life, and the production of high yields

in a variety of environmental conditions. Some GE plants are

genetically modified to produce useful goods such as biofuel

or pharmaceuticals. See Ctr. For Food Safety v. Johanns,

451 F. Supp. 2d 1165, 1170, 1183, 1186 (D. Haw. 2006). GE

crops play a major role in the world’s food supply. For

example, the U.S. Department of Agriculture reports that over

90% of all corn, soybean, and cotton grown in the United

States are now GE varieties.1In Hawaii, a GE variety of

papaya that is resistant to aphid-transmitted ringspot virus is

credited with saving the State’s papaya industry.

2

1

See Economic Research Service, USDA, Adoption of Genetically

Engineered Crops in the U.S., 1996–2016, http://www.ers.usda.gov/dataproducts/adoption-of-genetically-engineered-crops-in-the-us.aspx.(follow

link to “Genetically engineered varieties of corn, upland cotton, and

soybeans, by State and for the United States, 2000–16”).

2

See, e.g., Tom Callis, Papaya: A GMO Success Story, Hawaii

Tribune Herald, June 10, 2013, http://hawaiitribune-herald.com/sections/

news/local-news/papaya-gmo-success-story.html.
ATAY V. COUNTY OF MAUI 7

Scientific studies have not shown that food produced from

GE crops poses any inherent risk to human health. See, e.g.,

66 Fed. Reg. 4839, 4840 (Jan. 18, 2001) (“We have

concluded that the use, or absence of use, of bioengineering

in the production of a food is not a fact that is material either

with respect to consequences resulting from the use of the

food.”). However, the cultivation and testing of GE plants

raise several well-documented concerns. For example,

“[b]iological contamination [of conventional crops and wild

plants] can occur through pollination of non-[GE] plants by

[GE] plants or by the mixing of [GE] seed with natural, or

non-[GE] seed.” Geertson Seed Farms v. Johanns, No. C 06-

01075 CRB, 2007 WL 518624, at *4 (N.D. Cal. Feb. 13,

2007) (discussing “[g]ene transmission to non-[GE] alfalfa”). 

This unintended gene flow is frequently referred to as

“transgenic contamination.” Ctr. for Food Safety v. Vilsack,

718 F.3d 829, 832, 841 (9th Cir. 2013).

“[I]njury [from transgenic contamination] has an

environmental as well as an economic component.” 

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 155

(2010). Transgenic contamination has previously caused

significant economic impacts on farmers of conventional,

non-GE crops. For example, “[i]n August of 2006, it was

revealed that the United States long-grain rice supply was

contaminated with [GE rice], and the price of rice dropped

dramatically.” In re Genetically Modified Rice Litigation,

No. 4:06 MD 1811 CDP, 2007 WL 3027580, *1 (E.D. Mo.

Oct. 15, 2007). “The market for American rice suffered

significantly, in part because of the European aversion to any

genetically modified foods.” Id.; see also Vilsack, 718 F.3d

at 832, 841 (explaining economic concerns raised by GE

alfalfa).
8 ATAY V. COUNTY OF MAUI

The cultivation of GE crops also may raise environmental

concerns, such as harm to beneficial plants and animals

caused by the increased use of pesticides sometimes

associated with testing and growing GE crops, the

proliferation of “superweeds” and other pests resistant to

pesticides, and the reduction of biodiversity. See, e.g.,

Vilsack, 718 F.3d at 841 (explaining concerns with pesticideresistant weeds and the increased use of pesticides associated

with GE alfalfa). For example, the escape of herbicideresistant GE plants from test fields or the contamination of

wild plants with genes providing for herbicide resistance may

have detrimental environmental impacts as these plants outcompete other plants, as reportedly occurred in the case of

genetically modified creeping bentgrass.3“Biological

contamination” might also raise human health concerns

where, for example, GE seeds for pharmaceutical crops

escape field trials and grow amid commercial crops headed

to the market, as reportedly occurred in the case of GE corn

designed to produce a protein to be used in pig vaccine. See

GAO Report, supra n.3, at 91–92.

B. Maui County’s ban on the cultivation of GE plants

Concerned with the risks presented by the testing and

cultivation of GE plants, on November 4, 2014, the voters of

Maui County passed a ballot initiative enacting “A Bill

3

See USDA, News Release No. 0350.07, USDA Concludes

Genetically Engineered Creeping Bentgrass Investigation

(Nov. 26, 2007), http://www.usda.gov/wps/portal/usda/usdahome?conte

ntidonly=true&contentid=2007/11/0350.xml; U.S. Gov’t Accountability

Office, GAO-09-60, Genetically Engineered Crops: Agencies are

Proposing Changes to Improve Oversight, but Could Take Additional

Steps to Enhance Coordination and Monitoring 20–21 (2008),

http://www.gao.gov/products/GAO-09-60.
ATAY V. COUNTY OF MAUI 9

Placing a Moratorium on the Cultivation of Genetically

Engineered Organisms” (the Ordinance). Maui’s effort to

regulate GE crops is not unique. Hawaii County and Kauai

County also have passed ordinances regulating GE crops,

which are the subjects of two other legal challenges pending

before our court. Amici the Center for Food Safety, et al.

report that more than 130 statutes, regulations, and ordinances

governing GE crops have been passed nationwide.

The stated purposes of Maui’s Ordinance are to protect

organic and non-GE farmers and the County’s environment

from transgenic contamination and pesticides, preserve the

right of Maui County residents to reject GE agriculture, and

protect the County’s vulnerable ecosystems and indigenous

cultural heritage. Ordinance § 4.

TheOrdinance enacts a “TemporaryMoratorium”making

it “unlawful for any person or entity to knowingly propagate,

cultivate, raise, grow or test Genetically Engineered

Organisms within the County of Maui until” the Ordinance is

amended or repealed. Id. § 5(1). On its face, as the parties

agree, the Ordinance applies not only to the commercial

agricultural operations like Monsanto and Agrigenetics, but

also to individuals who have GMO plants in their backyards,

such as a ringspot-virus-resistant GE papaya tree. The

Ordinance provides exceptions only for “GE Organisms that

are in mid-growth cycle,” products prepared for sale that

contain GE organisms, licensed health practitioners, and

certain academic research. Id. § 5(2).

The “TemporaryMoratorium” imposed by the Ordinance

is more accurately characterized as a ban on the cultivation

and testing of GE crops, as it will continue in effect absent

amendment or repeal. The ban may be amended or repealed
10 ATAY V. COUNTY OF MAUI

only if an Environmental and Public Health Impacts Study is

completed, a public hearing held, and two-thirds of the

County Council approve the amendment or repeal. Id. § 6. 

Additionally, the County Council must find that the

amendment or repeal will significantly benefit the County

while causing no significant harm. Id. § 6.

The Ordinance imposes civil penalties of $10,000 for a

first violation, $25,000 for a second violation, and $50,000

for additional violations. Id. § 9(2). Each day an individual

violates the Ordinance is considered a separate violation. Id. 

The Ordinance creates criminal liability as well, with

violations punishable by a $2,000 fine, imprisonment for no

longer than one year, or both for each offense. Id. § 9(3). 

The Ordinance also authorizes the County’s Director of

Environmental Management to enter property to remove GE

organisms at the violator’s expense. Id. § 9(4). There is also

a citizen suit provision that allows private suits to enjoin

violations of the Ordinance. Id. § 9(5). Finally, the

Ordinance contains a severability clause. Id. § 10.

C. Procedural history

On November 12, 2014, eight days after voters passed the

initiative, a group of proponents of the ballot initiative

including the Sustainable Hawai`ian Agriculture for the Keiki

and the `Aina Movement (collectively SHAKA) filed suit in

Hawaii state court, seeking declaratory relief to resolve the

Ordinance’s legality (the Atay action).

The following day, opponents of the initiative including

Appellees (collectively, the GE Parties) filed suit against

Maui County in federal district court, seeking to invalidate

the Ordinance (the Robert Ito Farm action). On November
ATAY V. COUNTY OF MAUI 11

17, 2014, following an agreement between the GE Parties and

the County, the magistrate judge enjoined the County from

“publishing or certifying the Ordinance, enacting, effecting,

implementing, executing, applying, enforcing, or otherwise

acting upon the Ordinance” until the court could determine its

legality. SHAKA moved to intervene, and the district court

granted the motion on December 15, 2014, noting that Maui’s

mayor and the County Council had publicly opposed the

Ordinance prior to its passage.4

On December 30, 2014, the GE Parties removed the Atay

action to federal court, where it was assigned to Chief Judge

Mollway, the same judge assigned the Robert Ito Farm

action. SHAKA filed a motion to remand back to state court,

which the district court denied.

On June 30, 2015, the district court granted the GE

Parties’ motion for summary judgment filed in the Robert Ito

Farm action and granted the County’s motion to dismiss filed

in the Atay action. Robert Ito Farm, Inc. v. Cty. of Maui,

111 F. Supp. 3d 1088 (D. Haw. 2015). The district court

found the Ordinance unenforceable because it was expressly

and impliedly preempted by federal law, impliedly preempted

by state law, and in excess of the County’s authority under

the Maui County Charter. Id. at 1100–14.

SHAKA appealed the district court’s judgment in both

cases. On appeal, SHAKA, the GE Parties, and two groups

4 The district court denied a motion to intervene filed by Moms on a

Mission Hui, Moloka‘i Mahi‘ai, Gerry Ross, and the Center for Food

Safety. This denial is the subject of a separate appeal, Robert Ito Farm,

Inc. v. County of Maui, No. 15-15246, which we resolve in a concurrently

filed opinion.
12 ATAY V. COUNTY OF MAUI

of amici filed briefs, while Maui County filed a statement of

no position.

II.

A. The Parties’ threshold arguments

We first address several threshold arguments raised bythe

Parties. Appellees argue that Appellants lack standing to

maintain this appeal. SHAKA contends that the district court

erred by refusing to remand the Atay action to state court and

denying their request for Rule 56(d) discovery on the scope

of regulations affecting GE crops. We reject these

arguments.5

1. Appellants have standing.

The GE Parties have moved to dismiss for lack of

appellate jurisdiction, arguing that SHAKA and other

Appellants “lack independent standing to defend the

constitutionality of the ordinance where the relevant public

officials have chosen not to.”

Article III of the U.S. Constitution limits federal courts’

power to deciding actual “cases” or “controversies.” U.S.

Const., Art. III, § 2. One element of the Constitution’s caseor-controversyrequirement is that a litigant must demonstrate

5 We also reject SHAKA’s argument that the district court abused its

discretion in denying SHAKA’s motion to certify the state law issues

presented to the Hawaii Supreme Court. As explained in our concurrently

filed opinion in Syngenta Seeds, Inc. v. County of Kauai, Nos. 14-16833,

14-16848, certification is not merited because the implied state preemption

analysis under Hawaii law is well-defined.
ATAY V. COUNTY OF MAUI 13

standing to sue. Clapper v. Amnesty Int’l USA, 133 S. Ct.

1138, 1146 (2013). The standing requirement is built on

separation-of-powers principles; it “serves to prevent the

judicial process from being used to usurp the powers of the

political branches.” Id. The standing requirement “must be

met by persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance.” 

Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)

(internal quotation marks omitted). To establish Article III

standing, a litigant must demonstrate an injury that is

“‘concrete, particularized, and actual or imminent; fairly

traceable to the challenged action; and redressable by a

favorable ruling.’” Clapper, 133 S. Ct. at 1147 (quoting

Monsanto, 561 U.S. at 149). “As a general rule, in an

injunctive case this court need not address standing of each

plaintiff if it concludes that one plaintiff has standing.” Nat’l

Ass’n of Optometrists & Opticians LensCrafters, Inc. v.

Brown, 567 F.3d 521, 523 (9th Cir. 2009).

The GE Parties’ standing challenge relies primarily on

Hollingsworth v. Perry, 133 S. Ct. 2652, 2660 (2013), where

the Supreme Court held that the proponents of California’s

Proposition 8 lacked standing to defend the Proposition after

state officials refused to do so. The Court reasoned that the

intervenors had “no ‘direct stake’ in the outcome of their

appeal,” and “[t]heir only interest . . . was to vindicate the

constitutional validity of a generally applicable California

law.” Id. at 2662. The GE Parties contend that

“Hollingsworth establishes a bright-line rule: The only party

with a cognizable interest in defending the constitutionality

of a generally applicable law is the government, and the only

persons permitted to assert that interest in federal court,

accordingly, are the government’s officials or other agents.” 

The GE Parties argue that Diamond v. Charles, 476 U.S. 54,
14 ATAY V. COUNTY OF MAUI

66 (1986), which held that a private doctor lacked standing to

defend the constitutionality of a state abortion law that the

state refused to defend, lends further support to this rule.

The GE Parties overlook a key aspect of the Supreme

Court’s standing analysis for initiative proponents turned

intervenors: Such intervenors can establish standing if they

can do so independently of their status as ballot initiative

proponents. For example, in Hollingsworth, the Court

specifically noted that the intervenors did not have “a

judicially cognizable interest of their own,” and “have

likewise not suffered an injury in fact.” 133 S. Ct. at

2663–64 (emphasis added). Similarly, in Diamond, although

the Court reasoned that Diamond “could not compel the State

to enforce” the restrictions on abortion even if they were

determined to be constitutional, the Court went on to analyze

Diamond’s independent allegations of standing. 476 U.S. at

64–67 (“Even if there were circumstances in which a private

party would have standing to defend the constitutionality of

a challenged statute, this is not one of them. Diamond is not

able to assert an injury in fact.”). Again, in Arizonans for

Official English v. Arizona, 520 U.S. 43, 65 (1997), the Court

analyzed the intervenors’ standingseparatelyfrom their status

as proponents of a law. Without definitively resolving the

issue, the Court expressed “grave doubts” as to the

intervenors’ independent standing because their “requisite

concrete injury . . . [was] not apparent.” Id. at 66.

Thus, although SHAKA and the other Appellants’ status

as ballot initiative proponents and intervenors does not afford

them standing, they may be able to show standing

independently.
ATAY V. COUNTY OF MAUI 15

We find that the SHAKA Appellants have done so based

on the allegations of the five individual Appellants—Alika

Atay, Mark Sheehan, Bonnie Marsh, Lei`ohu Ryder, and

Lorrin Pang. Alika Atay and Mark Sheehan are Maui

residents who allege that GE farming operations on Maui,

including Monsanto’s, threaten economic harm to their

organic, non-GE farms. They allege that transgenic

contamination and the drift of wind-borne pesticides threaten

to wipe out their customer base, who will not purchase GE

food. They contend that they have had to change their

conduct because of GE farming operations. For example, Mr.

Sheehan states that he was forced to locate his farming

operations on Maui’s North Shore, but that even there he

suffers a risk of transgenic contamination and pesticide

exposure. Mr. Atay, who employs “natural farming

techniques” that require the collection of wild plants and

microorganisms, states that he has been prevented from

gathering local plants to use in his operations from areas

nearby GE farms, due to the risk of genetic contamination. 

These allegations of concrete harms caused by GE farming

operations satisfy the injury-in-fact requirement. Indeed, the

Supreme Court has held that actions conventional alfalfa

farmers planned to take because of anticipated

“contamination” from GE alfalfa seed demonstrated injury in

fact. Monsanto, 561 U.S. at 154. These harms are also

redressable by a decision favorable to Appellants upholding

Maui’s ban on GE crops. Given the Ordinance’s citizen suit

provision, the possibility that the County would decline to

enforce the Ordinance does not undermine our finding of

redressability.

Appellants’ standing is also established based on

allegations regarding environmental and recreational harms

caused by pesticides used on GE farms. Lei`Ohu Ryder
16 ATAY V. COUNTY OF MAUI

alleges that she would like to swim in the waters near

Monsanto’s fields but refrains from doing so because she

fears pesticide contamination. Her feared risk of harm cannot

be dismissed as lacking credibility at the summary judgment

stage given that, as Appellants assert, these waters have been

polluted by pesticide-laden storm runoff from Monsanto’s

fields in the past. Ms. Ryder further alleges that her home is

located close to Monsanto’s fields, and she fears damaging

health effects from drifting pesticides. These are specific,

reasonable allegations that GE farming operations directly

injure the affiants’ recreational interests and health that, at the

summary judgment stage, suffice to show injury in fact. 

Indeed, the Supreme Court has held that similar “conditional

statements—that [the affiants] would use the nearby North

Tyger River for recreation if [defendants] were not

discharging pollutants into it,” were sufficient to show injury

in fact. Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs.(TOC), Inc., 528 U.S. 167, 183–84 (2000). Again, the

affiants’ asserted injuries are redressable by a decision in

Appellants’ favor.

We therefore conclude that Appellants have established

Article III standing and deny the GE Parties’ motion to

dismiss.

2. The district court did not err in denying SHAKA’s

motion to remand to state court.

SHAKA argues that the district court erred in refusing to

remand back to state court the Atay action, which alleged

only state law claims for declaratory relief. We review the

district court’s denial of the motion to remand for lack of

removal jurisdiction de novo. United Computer Sys., Inc. v.

AT & T Corp., 298 F.3d 756, 760 (9th Cir. 2002).
ATAY V. COUNTY OF MAUI 17

A state civil action is removable to federal court if the

federal court could have exercised original jurisdiction. 

28 U.S.C. § 1441(a). In general, a state court action may not

be removed to federal court on the basis of an anticipated

federal defense, including federal preemption. Retail Prop.

Trust v. United Bhd. of Carpenters & Joiners of Am.,

768 F.3d 938, 947 (9th Cir. 2014) (citing Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987)). However, declaratory

judgment cases operate under a different rule: “Where the

complaint in an action for declaratory judgment seeks in

essence to assert a defense to an impending or threatened

state court action, it is the character of the threatened action,

and not of the defense, which will determine whether there is

federal-question jurisdiction in the District Court.” Pub.

Serv. Comm’n of Utah v. Wycoff Co. Inc., 344 U.S. 237, 248

(1952); see Medtronic, Inc. v. Mirowski Family Ventures,

LLC, 134 S. Ct. 843, 848 (2014).

Here, SHAKA filed the Atay action in state court in

anticipation of the GE Parties’ federal suit. Indeed, SHAKA

stated in its complaint that it filed suit due to the “threat of

imminent and inevitable litigation regarding” the Ordinance’s

legality. SHAKA attempts to distinguish the rule set forth in

Public Services Commission of Utah by arguing that the

County is the defendant in both actions. However, as the

district court recognized in granting SHAKA’s motion to

intervene, SHAKA is in effect standing in for the County as

the defendant in the Robert Ito Farm action. In these

circumstances, it is the character of the Robert Ito Farm

action, in which questions of federal preemption are front and

center, that determines whether there is federal question

jurisdiction. Id. Therefore, the district court did not err in

denying SHAKA’s motion to remand.
18 ATAY V. COUNTY OF MAUI

3. The district court did not err in denying SHAKA’s

request for Rule 56(d) discovery.

SHAKA also argues that the district court improperly cut

off discovery on state and federal regulation of GE crops in

Maui County before ruling on the preemption arguments

presented in the GE Parties’ summary judgment motion.

Under Rule 56(d), when “a nonmovant shows by affidavit

or declaration that, for specified reasons, it cannot present

facts essential to justify its opposition [to a motion for

summary judgment], the court may: (1) defer considering the

motion or deny it; (2) allow time to obtain affidavits or

declarations or to take discovery; or (3) issue any other

appropriate order.” Fed. R. Civ. P. 56(d). The burden is on

the party seeking a Rule 56(d) continuance “to proffer

sufficient facts to show that the evidence sought exists, and

that it would prevent summary judgment.” Chance v. PacTel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir. 2001). 

We review the district court’s denial of discovery for abuse

of discretion. Burlington N. Santa Fe R.R. Co. v. Assiniboine

& Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 775

(9th Cir. 2003).

The district court did not abuse its discretion in

concluding that SHAKA had failed to show that additional

facts were essential to its ability to oppose summary

judgment on preemption grounds. As we have recognized,

“[p]reemption is predominantlya legal question, resolution of

which would not be aided greatly by development of a more

complete factual record.” Hotel Emps. & Rest. Emps. Int’l

Union v. Nev. Gaming Comm’n, 984 F.2d 1507, 1513 (9th

Cir. 1993) (citing Pac. Gas & Elec. Co. v. State Energy Res.

Conserv. & Dev. Comm’n, 461 U.S. 190, 201 (1983)). The
ATAY V. COUNTY OF MAUI 19

preemption questions raised in this case are no different, and

can be resolved without further development of background

facts.

B. Federal preemption

The GE Parties advance two arguments that Maui’s ban

on the cultivation and testing of GE plants is preempted by

federal law. First, they argue that the Ordinance is expressly

preempted by the Plant Protection Act (PPA), 7 U.S.C.

§ 7756(b), in its application to plants that APHIS regulates as

plant pests. Second, they contend that the Ordinance is

impliedly preempted in its entirety because it frustrates the

PPA’s purposes and objectives. We address each argument

in turn after summarizing federal preemption principles and

the federal regulatory scheme governing GE plants.6

1. Overview of Federal Preemption Principles

The Supremacy Clause makes the laws of the United

States “the supreme Law of the Land; . . . any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const., Art. VI, cl. 2. “Put simply,

federal law preempts contrary state law.” Hughes v. Talen

Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016). Federal

judges, of course, are not constitutionally charged with

making federal law. Rather, that is primarily the role of

Congress and it is thus “Congress rather than the courts that

preempts state law.” Chamber of Commerce of U.S. v.

6 Our review of the district court’s decision regarding preemption and

its interpretation and construction of a federal statute is de novo. Am.

Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9thCir.

2009).
20 ATAY V. COUNTY OF MAUI

Whiting, 563 U.S. 582, 607 (2011). Our task as judges “is to

ascertain Congress’ intent in enacting the federal statute at

issue,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983),

which “is the ultimate touchstone in every pre-emption case,” 

Hughes, 136 S. Ct. at 1297.

Congress’ intent to preempt state and local law may be

“explicitly stated in the statute’s language or implicitly

contained in its structure and purpose.” Cipollone v. Liggett

Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation

marks omitted). In other words, federal preemption “may be

either express or implied.” Shaw, 463 U.S. at 95. Where the

intent of a statutory provision that speaks expressly to the

question of preemption is at issue, “we do not invoke any

presumption against pre-emption but instead focus on the

plain wording of the clause, which necessarily contains the

best evidence of Congress’ pre-emptive intent.” Puerto Rico

v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (2016)

(internal quotation marks omitted).

Absent an express congressional command, a state law is

preempted if it actually conflicts with federal law or if federal

law so thoroughly occupies a legislative field that it is

unreasonable to inferthatCongress intended for supplemental

state or local regulation. Cipollone, 505 U.S. at 516. A

conflict giving rise to preemption exists “where it is

impossible for a private party to comply with both state and

federal law, . . . and where under the circumstances of a

particular case, the challenged state law stands as an obstacle

to the accomplishment and execution of the full purposes and

objectives of Congress.” Crosby v. Nat’l Foreign Trade

Council, 530 U.S. 363, 372–73 (2000) (alterations and

internal citations omitted). What is a sufficient “obstacle” to

give rise to implied preemption is a matter of judgment to be
ATAY V. COUNTY OF MAUI 21

informed by examining the federal statute as a whole and

identifying its purpose and intended effects. Id. at 373. 

Particularly where a statute regulates a field traditionally

occupied by states, such as health, safety, and land use, a

“presumption against preemption” adheres. Wyeth v. Levine,

555 U.S. 555, 565 n.3 (2009). We assume that a federal law

does not preempt the states’ police power absent a “clear and

manifest purpose of Congress.” Id. at 565 (internal quotation

marks omitted).

“[A]n agency regulation with the force of law [also] can

pre-empt conflicting state requirements.” Id. at 576. Only

specific agency rules carrying the force and effect of federal

law may give rise to conflict preemption, however, not

“agency proclamations of pre-emption.” Id.; see also City of

New York v. FCC, 486 U.S. 57, 63 (1988). We determine

whether an agency’s rule has the force and effect of law

“under the standard set forth in United States v. Mead Corp.,

533 U.S. 218, 234 (2001), and its progeny.” Reid v. Johnson

& Johnson, 780 F.3d 952, 964 (9th Cir. 2015). The latter

category of agency pronouncements about the impact of state

and local law on federal statutory objectives is entitled to

“some weight” though, weight proportional to its power to

persuade. Wyeth, 555 U.S. at 577; cf. Mead Corp., 533 U.S.

at 234–35; Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944).

2. The federal regulatory scheme governing GE

plants

As we explained in Vilsack, 718 F.3d at 833–36, three

federal agencies regulate GE plants: the Food and Drug

Administration, the Environmental Protection Agency, and
22 ATAY V. COUNTY OF MAUI

the U.S. Department of Agriculture, through APHIS. Only

APHIS’s regulation under the PPA is at issue here.

Congress enacted the PPA in 2000 to protect against

harms to “the agriculture, environment, and economy of the

United States” caused by “plant pests” and “noxious weeds,”

while facilitating commerce in non-dangerous plants.7

7 U.S.C. § 7701(1), (3), (5). In service of this goal, the PPA

prohibits the movement of plant pests except with a permit. 

Id. § 7711(a). The PPA further authorizes the Secretary of

Agriculture, and by delegation APHIS, to prohibit or restrict

the movement in interstate commerce of plants and other

products as “necessary to prevent the introduction . . . or the

dissemination of a plant pest or noxious weed within the

United States.” Id. § 7712(a); see also id. § 7712(f).

A “plant pest” is defined as any of eight types of listed

organisms that “can directly or indirectly injure, cause

damage to, or cause disease in any plant or plant product.” 

Id. § 7702(14). Environmental and economic harm

associated with transgenic contamination caused by GE

plants is not “plant pest injury” that the PPA requires APHIS

to protect against. Vilsack, 718 F.3d at 833. However, “a

genetically modified organism is regulated as a plant pest if

it is created using an organism that is itself a plant pest,” id.

at 835 (citing 7 C.F.R. § 340.1), or if APHIS “has reason to

believe [that it] is a plant pest,” 7 C.F.R. § 340.1; Vilsack,

718 F.3d at 835, 840. Such GE plants are called “regulated

articles” or “presumptive plant pests.” Id. at 833; see

7 C.F.R. § 340.0(a) & n.1; id. § 340.1 (definition of

7 The PPA consolidated and built upon preexisting statutes and

implementing regulations governing plant pests and noxious weeds. See

Vilsack, 718 F.3d at 834 (explaining statutory history).
ATAY V. COUNTY OF MAUI 23

“regulated article”); id. § 340.2 (groups of organisms that are

or contain plant pests).

Such GE plants are regulated as plant pests “until the

agency concludes on the basis of scientific evidence that the

modified plant is not a ‘plant pest.’” Vilsack, 718 F.3d at

835. Accordingly, with narrow exceptions, APHIS’s

regulations prohibit the introduction—including the

movement through the United States and “use . . . outside the

constraints of physical confinement that are found in a

laboratory, contained greenhouse, . . . or other contained

structure,” 7 C.F.R. § 340.1—of regulated articles without

APHIS’s permission. Id. § 340.0(a).

APHIS’s permitting process imposes strict conditions on

any field test or other approved release into the environment

in order to prevent the dissemination of regulated articles. Id.

§§ 340.3(c) (providing performance standards), 340.4(f)

(providing general permit conditions, which are in addition to

permit-specific conditions). Approved field trials are subject

to ongoing inspections by USDA inspectors, id.

§§ 340.3(d)(6), 340.4(d), and APHIS requires a series of

reports regarding the trials, id. §§ 340.3(d)(4), 340.4(f)(9).

Any party who believes that a certain regulated article is

unlikely to pose a risk as a plant pest may petition APHIS for

a determination of nonregulated status of the article. Id.

§ 340.6(a). To succeed in such a petition, an applicant must

demonstrate, through an extensive evaluation process

involving data collected from APHIS-authorized field tests

and other experiments, that the regulated article is no more

likely to cause plant pest harms than its non-GE counterpart. 

See Vilsack, 718 F.3d at 835; 7 C.F.R. § 340.6(c). The

decision-making process typically involves analysis pursuant
24 ATAY V. COUNTY OF MAUI

to the National Environmental Policy Act. See Vilsack,

718 F.3d at 832, 837. If APHIS grants the petition, APHIS

no longer has jurisdiction to regulate the plant or other article. 

Id. at 842.

3. The Ordinance is expressly preempted by the PPA

to the extent that it seeks to ban GE plants that

APHIS regulates as plant pests.

Congress included an express preemption provision in the

PPA. The provision states in relevant part that “no State or

political subdivision of a State may regulate the movement in

interstate commerce of any . . . plant, . . . plant pest, noxious

weed, or plant product in order to control . . . , eradicate . . . ,

or prevent the introduction or dissemination of a . . . plant

pest, or noxious weed, if the Secretary has issued a regulation

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

noxious weed within the United States.” 7 U.S.C.

§ 7756(b)(1).8 Three conditions thus must be met for a local

law to be preempted: (1) the local law must regulate

“movement in interstate commerce,” (2) it must be intended

to “control . . . , eradicate . . . , or prevent the introduction or

dissemination of a . . . plant pest, or noxious weed,” and

(3) APHIS must regulate the plant at issue as a plant pest or

noxious weed. Each condition is met here.

8

 The preemption provision contains exemptions for (A) regulations

consistent with and not in excess of federal regulation and (B) states or

political subdivisions that demonstrate a “special need” to the Secretary

of Agriculture. 7 U.S.C. § 7756(b). These exemptions are not applicable

here because the Ordinance exceeds federal regulation and the County did

not attempt to demonstrate a “special need.”
ATAY V. COUNTY OF MAUI 25

First, the Ordinance regulates “movement in interstate

commerce” by banning all testing, planting, or cultivation of

GE plants to prevent their introduction or dissemination. 

Under the PPA, “movement” is defined broadlyand expressly

includes a plant’s “release into the environment,” id.

§ 7702(9)(E), such as open-air field testing of GE plants. 

7 C.F.R. § 340.1 (defining “release into the environment”). 

Experimental GE plants grown on test fields in Maui are

without doubt involved in interstate commerce. Setting aside

the global market for GE seed crops, seeds and other

organisms carried afield by wind or other vectors “do not

acknowledge State lines.” 52 Fed. Reg. 22,892, 22,894 (June

16, 1987). Maui’s Ordinance itself states that GE crops

impact “foreign markets” and “even a single event of

Transgenic Contamination can and has resulted in significant

economic harm when the contaminated crops are rejected by

buyers.” Ordinance § 2(14). The Ordinance is expressly

designed to “defend and promote the economic integrity of

organic and non-GE markets that are harmed by transgenic

contamination by GE Operations and Practices.” Id. § 4(2).

While the phrase “movement in interstate commerce”

within the meaning of the PPA’s preemption clause may be

narrower than the full scope of Congress’s Commerce Clause

power, see Circuit City Stores Inc. v. Adams, 532 U.S. 105,

118 (2001), we find that the phrase encompasses federally

regulated GE crops grown in Hawaii. SHAKA’s narrower

interpretation, which would limit the scope of the preemption

clause to local laws addressing plants that are in the act of

traveling to or through at least one other state, is less

consistent with the statute’s larger context and purpose,

which clearly envisions the dissemination of plants and seeds

from fields as implicating movement in interstate commerce. 

See, e.g., 7 U.S.C. § 7711(a). Indeed, Congress expressly
26 ATAY V. COUNTY OF MAUI

recognized in the PPA that “all plant pests, noxious weeds,

plants, plant products, articles capable of harboring plant

pests or noxious weeds regulated under this chapter are in or

affect interstate commerce.” Id. § 7701(9).

Second, the Ordinance was passed in order to “control

. . . , eradicate . . . , or prevent the introduction or

dissemination of a . . . plant pest, or noxious weed.” Id.

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

prevent the spread of GE plants. Ordinance § 4(1)–(2); see

also id. § 2(3) (stating that “GE Organisms . . . exist in the

County as a possible invasive species”). The Ordinance

implements this purpose by banning almost all planting and

testing of GE plants. Id. § 5. The Ordinance states that

existing governmental oversight of GE plants is “inadequate”

to achieve this purpose. Id. § 2(9).

SHAKA argues that the second preemption condition is

not met because the Ordinance seeks to control GE plants in

order to prevent harms associated with transgenic

contamination and pesticides, which are not “plant pest

harms” within the meaning of the PPA. Vilsack, 718 F.3d at

839. What matters under the preemption clause, however, is

whether a local law seeks to control, eradicate, or prevent the

introduction or dissemination of plants that APHIS regulates

as plant pests. The fact that APHIS regulates such plants for

reasons other than second-order concerns that motivated the

local law, such as concern with transgenic contamination, is

irrelevant as far as the express preemption clause is

concerned. To hold otherwise would allow state and local

governments to subvert the preemption clause by “simply

publishing a legislative committee report articulating some []

interest or policy” other than preventing plant pest harms that

would be furthered by a proposed law banning plant pests. 
ATAY V. COUNTY OF MAUI 27

See Perez v. Campbell, 402 U.S. 637, 652 (1971); cf. Puente

Arizona v. Arpaio, 821 F.3d 1098, 1106 (9th Cir. 2016) (“If

Congress intended to preempt laws like the one challenged

here, it would not matter what Arizona’s motives were; the

laws would clearly be preempted.”). Thus, a local law’s

purpose matters to the preemption analysis under 7 U.S.C.

§ 7756(b)(1) only to the extent that the local law must be

intended to control plants that APHIS regulates as plant pests,

rather than having only an incidental effect on such plants. 

Under the PPA’s preemption clause, state and local

governments may not supplement the strict controls that

apply to federally regulated plant pests without APHIS’s

approval.

Third, APHIS has issued regulations in order to prevent

the dissemination of the class of plant pests at issue, GE

crops. See 7 C.F.R. Part 340. SHAKA’s argument that the

third preemption condition is not met because GE plants are

regulated articles, not plant pests, is unavailing. APHIS

deems nearly all GE plants to be plant pests because nearly

all GE plants are created using Agrobacterium, which is a

listed plant pest. 7 C.F.R. § 340.2(a). If a GE plant is made

with Agrobacterium or another plant pest listed in § 340.2,

APHIS considers it to be a plant pest. Id. § 340.0 n.1; 51 Fed.

Reg. 23,352, 23,355 (June 26, 1986) (“USDA believes that an

organism or product is a plant pest if the donor, recipient,

vector or vector agent of the genetically engineered organism

or product comes from a member of one of the groups listed

in § 340.2.” (emphasis added)); 52 Fed. Reg. at 22,895

(“[T]he definition of plant pest was deliberately made broad

by Congress to include those organisms that might later be

found to be injurious to plants.”); id. at 22,893–94. We

explained this in Vilsack—“a genetically modified organism
28 ATAY V. COUNTY OF MAUI

is regulated as a plant pest if it is created using an organism

that is itself a plant pest.” 718 F.3d at 835 (emphasis added).

APHIS may also regulate GE plants that were not made

with a listed plant pest if they “are believed to be plant pests.” 

7 C.F.R. § 340.0 n.1. According to the GE Parties, this class

of regulated articles is not at issue here. Even if such

presumptive plant pests are at issue, however, SHAKA is

incorrect in asserting that presumptive plant pests are merely

“regulated articles” and not plant pests for the purposes of the

preemption clause. The regulations indicate that all regulated

articles are considered to be plant pests. See 7 C.F.R.

§ 340.0(b) (equating “regulated article” with “plant pest”). 

Strict regulations apply to all plant pests—presumed or

listed—up until the point they are deregulated, at which point

they fall outside of the preemption clause and APHIS’s

jurisdiction under the PPA. See Vilsack, 718 F.3d at 841. 

Indeed, accepting the view that presumed plant pests are not

plant pests could create a regulatory paradox. If such plants

were not considered plant pests or noxious weeds under the

PPA, APHIS presumably would have no power to regulate or

deregulate them. No party takes this position in this case.

We conclude that the Ordinance is expressly preempted

by the PPA to the extent that it seeks to ban GE plants that

APHIS regulates as plant pests. The Ordinance seeks to

regulate “the movement in interstate commerce” of plant

pests “in order to control . . . , eradicate . . . , or prevent the

introduction or dissemination of . . . plant pest[s]” that APHIS

regulates extensively. 7 U.S.C. § 7756(b)(1).
ATAY V. COUNTY OF MAUI 29

4. The Ordinance is not impliedly preempted.

The PPA’s express preemption clause only preempts the

Ordinance in its application to plants regulated by APHIS as

plant pests, not plants that APHIS has deregulated and thus

has no authority over. However, the GE Parties argue, and

the district court held below, that the Ordinance is also

impliedly preempted by the PPA in its application to

deregulated, “commercialized” GE crops.9

See Robert Ito

Farm, 111 F. Supp. 3d at 1106–07. The GE Parties contend

that the Ordinance’s ban on deregulated GE crops

impermissibly frustrates the PPA’s purpose of facilitating

commerce in non-dangerous plants, while protecting the

nation from dangerous plant pests and noxious weeds. We

disagree.

We begin our search for implied preemptive intent by

observing the PPA’s express preemption clause creates a

“reasonable inference” that Congress did not intend to

preempt state and local laws that do not fall within the

clause’s scope. Freightliner Corp. v. Myrick, 514 U.S. 280,

288 (1995); see also Cipollone, 505 U.S. at 517 (holding that

a court should not consider implied theories of preemption

where an express preemption clause “provides a reliable

indicium of congressional intent with respect to state

authority”) (internal quotation marks omitted). As the GE

Parties concede, the Ordinance’s application to federally

deregulated GE crops does not fall within the PPA’s express

preemption clause. The resultant “reasonable inference” that

9 A different judge rejected the same argument in reviewing a similar

ban on GE crops imposed by Hawaii County. Hawai'i Floriculture &

Nursery Ass’n v. Cty. of Hawaii, No. Civ. 14-00267 BMK, 2014 WL

6685817, at *9–10 (D. Haw. Nov. 26, 2014).
30 ATAY V. COUNTY OF MAUI

Congress did not intend to preempt the Ordinance might be

overcome, of course. Thus, for example, a local law that is

consistent with an express preemption clause may still be

preempted if it “actually conflicts” with federal law. Geier v.

Am. Honda Motor Co., 529 U.S. 861, 871 (2000). However,

the GE Parties have not shown any actual conflict between

the Ordinance’s ban on federally deregulated GE crops and

any federal statutory or regulatory provision. Indeed, at

APHIS’s urging, we held in Vilsack that APHIS “no longer

had jurisdiction to continue regulating” a GE plant once

APHIS decided to deregulate it. 718 F.3d at 832.

Nor have the GE Parties shown more broadly that the

Ordinance impermissibly frustrates any federal objective by

banning federally deregulated, “commercialized” GE crops. 

The Supreme Court has warned that obstacle preemption

analysis does “not justify a freewheeling judicial inquiry

into whether a state statute is in tension with federal

objectives[, because] such an endeavor would undercut the

principle that it is Congress rather than the courts that

preempts state law.” Whiting, 563 U.S. at 607 (internal

quotation marks omitted). The Court’s “precedents establish

that a high threshold must be met if a state law is to be

preempted for conflicting with the purposes of a federal Act.” 

Id. (internal quotation marks omitted).

Even assuming that an obstacle preemption analysis is

called for because the PPA’s express preemption provision

does not “provide[] a reliable indicium of congressional

intent with respect to state authority,” Cipollone, 505 U.S. at

517 (internal quotation marks omitted), the high threshold
ATAY V. COUNTY OF MAUI 31

required for preemption is not met here.10 Nothing in the

PPA suggests that Congress intended to prevent state and

local governments from exercising their traditional authority

over agricultural land use with respect to certain crops simply

because APHIS deregulated them. To hold otherwise would

have the backwards effect of preventing states and local

governments from regulating crops formerly considered to be

plant pests, even though states and local governments may

regulate conventional crops that were never considered plant

pests and raise fewer concerns. Such a holding would have

far-reaching practical effects. Because a large percentage of

commercial crops grown in the United States are GE crops,

states and counties across the nation would be prevented from

regulating an enormous swath of agriculture. We do not

believe that Congress so intended.

To hold otherwise would also leave a gap in the

regulation of GE Plants. We held in Vilsack that “APHIS . . .

has no power to regulate the adverse economic effects that

could follow [a GE crop’s] deregulation,” including due to

transgenic contamination. 718 F.3d at 841. We find no

indication, clear or otherwise, that Congress intended to

prevent states from closing this regulatory gap. Indeed, the

GE Partes ultimately concede that “[a]n appropriate local

entity . . . might be able to fill gaps in the federal regime to

address these issues.” There is nothing in the PPA or its

implementing regulations suggesting that a local government

10 As has the Supreme Court, “[w]e recognize, of course, that the

categories of preemption are not rigidly distinct,” and what might be

understood as an obstacle preemption argument might instead be

understood as a field preemption argument. Crosby v. Nat’l Foreign

Trade Council, 530 U.S. 363, 372 n.6 (2000) (internal quotation marks

omitted).
32 ATAY V. COUNTY OF MAUI

could not choose to do so by prohibiting the cultivation of

commercialized GE crops in a particular area.

We acknowledge that statements made in the introduction

to the White House Office of Science and Technology

Policy’s “Proposal for Coordinated Framework for

Regulation of Biotechnology,” 49 Fed. Reg. 50,856 (Dec. 31,

1984), recognized the importance of “achieving national

consistency” in the regulation of biotechnology. Such a

policy statement in the introduction of a policy document

certainly does not have the force and effect of law and thus its

own preemptive effect. See Wyeth, 555 U.S. at 576; Reid,

780 F.3d at 964. The statement also has little power to

persuade. The statement’s passing nature does not evince

thoroughness of consideration, and it was not even repeated

in the finalized framework. See 51 Fed. Reg. 23,302 (June

26, 1986). The statement also was not issued by APHIS,

the agency charged with implementing the PPA. Moreover,

the statement is not entirely consistent with later

pronouncements. The statement is at odds with Congress’s

subsequent enactment of the PPA’s express preemption

clause, which does not require national consistency in the

regulation of commercialized GE crops. Additionally,

APHIS subsequently has stated that “the issuance of final

rules does not per se prohibit State regulation of the intrastate

movement of genetically engineered plants.” 58 Fed. Reg.

17,044, 17,053 (Mar. 31, 1993). Rather, the agency

explained, “State regulations would be preempted only if they

are inconsistent with any Federal orders or regulations

promulgated pursuant to those Acts.” Id. These statements

are consistent with the scope of the PPA’s express

preemption clause. Again, a county’s prohibition on the

growing of GE crops in a particular area is not inconsistent

with any federal regulation under the PPA to the extent the
ATAY V. COUNTY OF MAUI 33

bans apply to plants that are no longer regulated under the

PPA.

Accordingly, we hold that the PPA does not impliedly

preempt the Ordinance in its application to GE crops that

APHIS has deregulated. The regulation of commercialized

crops, both of GE and traditional varieties, remains within the

authority of state and local governments.

C. State preemption

We have held that federal law preempts the Ordinance in

its application to GE plants that APHIS regulates as plant

pests, but not in its application to federally deregulated,

commercialized GE plants. However, we find that Hawaii

state law impliedly preempts the Ordinance in its remaining

application to commercialized GE plants and thus affirm the

district court’s decision.11

As explained in our concurrently filed opinion in

Syngenta v. County of Kauai, No. 14-16833, Hawaii courts

apply a “‘comprehensive statutory scheme’ test” to decide

field-preemption claims under HRS § 46-1.5(13), such as that

made by the GE Parties here. Under this test, a local law is

preempted if “it covers the same subject matter embraced

within a comprehensive state statutory scheme disclosing an

express or implied intent to be exclusive and uniform

throughout the state.” Richardson v. City &Cty. of Honolulu,

868 P.2d 1193, 1209 (Haw. 1994). Courts frequently treat

11 We agree with the district court in Syngenta Seeds, Inc. v. County

of Kauai, that the scope of federal preemption delineates the breadth of

state field preemption in this case. No. Civ. 14-00014 BMK, 2014 WL

4216022, at *9 n.11 (D. Haw. Aug. 25, 2014).
34 ATAY V. COUNTY OF MAUI

this test as involving several overlapping elements, including

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

subject matter; (2) the state law comprehensively regulates

that subject matter; and (3) the legislature intended the state

law to be uniform and exclusive. However, as is true of our

federal preemption analysis, the “critical determination to be

made” is “whether the statutory scheme at issue indicate[s] a

legislative intention to be the exclusive legislation applicable

to the relevant subject matter.” Pac. Int’l Servs. Corp. v.

Hurip, 873 P.2d 88, 94 (Haw. 1994) (internal quotation marks

omitted).

We begin by summarizing Hawaii law regulating

potentially harmful plants and then we apply Hawaii’s

comprehensive statutory scheme test.

1. Hawaii law regulates the importation,

transportation, sale, control, and eradication of

potentially harmful plants.

As an isolated island chain with a large number of

endemic species and “more threatened and endangered

species per square mile than any other place on earth,” USDA

Regulation of Biotechnology Field Tests in Hawaii, supra, at

1, Hawaii is perhaps more threatened by invasive species than

any other state. Its history with human-introduced invasive

species is long and, as history has shown, well-intentioned

fixes to the problem have sometimes proven colossally

uninformed. An infamous example occurred in 1883, when

sugarcane farmers imported mongooses to control invasive
ATAY V. COUNTY OF MAUI 35

rats that plagued Maui and other islands.12 It turned out that

rats are nocturnal and mongooses are diurnal, and thus the

mongooses mostly hunted other prey, ravaging native bird

populations and becoming a widespread problem that, like the

rats, persists today. Introduced animals are not the only

threat. As a group of biologists observed, “[t]he problem of

introduced plants is especially significant in Hawaii.”13

To address the threat posed by introduced, potentially

harmful plants, Hawaii has promulgated five chapters of

Hawaii law. The State also coordinates closely with APHIS

with respect to plants within APHIS’s jurisdiction. See

USDA Regulation of Biotechnology Field Tests in Hawaii,

supra, at 2 (“Hawaii is one of the most active States when it

comes to providing input on field test applications.”).

In relevant part, Chapter 141 (titled the Department of

Agriculture) authorizes the Hawaii Department of Agriculture

(DOA) to enact rules regulating potentially harmful plants,

including:

The introduction, transportation, and

propagation of . . . plants; . . . The quarantine,

inspection, . . . destruction, or exclusion,

either upon introduction into the State, or at

12 See Mongoose, Hawaii Invasive Species Council,

http://dlnr.hawaii.gov/hisc/info/invasive-species-profiles/mongoose/ (last

vistied Sept. 2, 2016).

13 David Pimentel, Lori Lach, Rodolfo Zuniga, & Doug Morrison,

Environmental and Economic Costs Associated with Non-Indigenous

Species in the United States, Cornell Chronicle, Cornell University (Jan.

24, 1999), http://www.news.cornell.edu/stories/1999/01/environmentaland-economic-costs-associated-non-indigenous-species.
36 ATAY V. COUNTY OF MAUI

any time or place within the State, of any . . .

seed . . . or any other plant growth or plant

product . . . that is or may be in itself

injurious, harmful, or detrimental to the

[agricultural or horticultural industries or the

forests of the State]; [and] The manner in

which . . . research activities may be

undertaken.

Haw. Rev. Stat. (HRS) § 141-2. Chapter 141 also requires

the DOA to establish “pest designations,” subject to a limited

exception for “incipient infestation[s]” requiring “immediate

action.” Id. § 141-3. The DOA must “develop and

implement a detailed control or eradication program for any

pest designated.” Id. § 141-3.5. Additionally, the DOA must

“so far as reasonably practicable, assist, free of cost to

individuals, in the control or eradication of . . . noxious

weeds, or other pests injurious to the environment or

vegetation of value.”14 Id. § 141-3.

Chapter 150 (the Hawaii Seed Law) addresses the sale of

agricultural and vegetable seeds. Among other restrictions,

the law prohibits the sale of such seeds if they are

contaminated by noxious weed seeds in excess of established

tolerances. Id. § 150-23. The law authorizes the DOA to

designate noxious weed seed by rule. Id. § 150-22; see also

id. § 150-21 (defining “noxious weed seed”).

Chapter 150A (the Hawaii Plant Quarantine Law)

prohibits importation of “restricted plants” without a permit,

14

“Control . . . means to limit the spread of a specific noxious weed

and to reduce its density to a degree where its injurious, harmful, or

deleterious effect is reduced to a tolerable level.” HRS § 152-1.
ATAY V. COUNTY OF MAUI 37

and directs the DOA to designate restricted plants by rule. Id.

§ 150A-6.1(a), (b). Such plants include designated noxious

weeds and other “specific plants that may be detrimental or

potentially harmful to agriculture, horticulture, the

environment, . . . or public health.” Id. § 150A-6.1(b). 

Pursuant to its authority, the DOA has enacted restrictions on

several disease-carrying commercial crops. Haw. Admin. R.

(HAR) §§ 4-72-6, 4-72-9–4-72-12. The Hawaii Plant

Quarantine Law also authorizes the DOA to “regulate or

prohibit the sale [within the State] of . . . restricted plants.” 

HRS § 150A-6.1(c). The law prohibits the sale and

importation of noxious weeds, however, except for research

with a permit issued by the DOA. Id. § 150A-6.1(d). 

Furthermore, the law prohibits the transportation within the

State of any “flora specified by rules and regulations of [the

DOA] except by a permit.” Id. § 150A-8. The law also

creates “an advisory committee on plants and animals,”

which is comprised of certain officials and other members

who “are thoroughly conversant with modern ecological

principles and the variety of problems involved in the

adequate protection of [the State’s] natural resources.” Id.

§ 150A-10. The committee is charged with “advising the

department in problems relating to the introduction,

confinement, or release of plants, animals, and

microorganisms.” Id.

Chapter 152 also addresses noxious weeds. HRS § 152-3

prohibits the introduction or transportation of “specific

noxious weeds or their seeds or vegetative reproductive parts

into any area designated . . . as free or reasonably free of

those noxious weeds,” except as permitted for educational or

research purposes. Chapter 152 authorizes the DOA to

designate noxious weeds and to cooperate with landowners

for their control or eradication. Id. §§ 152-2, 152-4, 152-6;
38 ATAY V. COUNTY OF MAUI

see HAR §§ 4-68-3–4-68-8 (criteria for noxious weed

designation).

Finally, Chapter 194 establishes an invasive species

council to provide “policy level direction, coordination, and

planning among state departments, federal agencies, and . . .

local initiatives for the control and eradication of harmful and

invasive species.” HRS § 194-2(a).15

In sum, Hawaii law establishes a regime for the regulation

of “restricted” or “noxious” plants, i.e., “any plant species

which is, or which may be likely to become, injurious,

harmful, or deleterious to the agricultural, horticultural,

aquacultural, or livestock industry of the State and to forest

and recreational areas and conservation districts of the State,

as determined and designated by the department from time to

time.” Id. § 152-1; see also id. § 150-21 (defining “noxious

weed seed”); id. § 150A-6.1 (defining “restricted plants”).

2. The Ordinance and Hawaii law address the same

subject.

Maui’s GE Plant Ordinance addresses the same subject

matter as the statutes above—the regulation of potentially

harmful plants and invasive species. See, e.g., HAR §§ 4-72-

6, 4-72-9–4-72-12.

The fact that no state statute or DOA rule specifically

mentions GE crops does not foreclose a finding of implied

15 As explained in our concurrently filed opinion in Syngenta Seeds,

Inc. v. County of Kauai, Nos. 14-16833, 14-16848, Hawaii also has a

comprehensive statutory scheme for the regulation of pesticides, another

concern that motivates Maui’s Ordinance. See HRS ch. 149A.
ATAY V. COUNTY OF MAUI 39

preemption. The statutes’ delegations of broad rulemaking

authority to the DOA includes the power to enact restrictions

specific to GE crops, at least should the DOA find that

specific GE crops are potentially harmful to agriculture or the

environment. See, e.g., HRS §§ 141-2, 150-22, 150A-6.1(b),

(c). Indeed, the DOA has exercised its authority to impose

restrictions on several commercial crops, including

sugarcane, papaya, cucurbit, banana, and coffee. HAR §§ 4-

72-6, 4-72-9–4-72-12. The DOA imposed these restrictions

due to concerns with insects and diseases these crops carry. 

Id. However, the same authority supporting these restrictions

would allow the DOA, as far as state law is concerned, to

regulate GE commercial crops due to risks such as genetic

contamination of non-GE crops and other plants. Indeed, as

Maui’s Ordinance states, “GE Organisms are not a part of the

natural environment of Maui County and instead exist in the

County as a possible invasive species.” Ordinance § 2(3). 

Hawaii has numerous regulations for the control of plant

pests, noxious weeds, and invasive species and has created an

invasive species council to develop “policy level direction”

on this subject. HRS § 194-2(a).

Hawaii’s regime for regulating invasive plant species and

other harmful plants, and the legislature’s delegations of

authority to the DOA to enact rules addressing the specific

subject matter of the Ordinance distinguishes this case from

those cited by SHAKA, in which the same-subject-matter

requirement was not met. For example, in Stallard v.

Consolidated Maui, Inc., the Hawaii Supreme Court found

that the same-subject-matter requirement was not met where

a local law addressed timeshares at hotels while the state

statutory scheme at issue regulated timeshares at

developments other than hotels. 83 P.3d 731, 736–37 (Haw.

2004). Unlike Stallard, the state statutory scheme at issue
40 ATAY V. COUNTY OF MAUI

here addresses the “universe” of potentially harmful plants,

and the County’s ordinance addresses a “‘galaxy’ thereof,”

GE crops. See Richardson, 868 P.2d at 1209.

3. Hawaii’s statutory scheme for the regulation of

potentially harmful plants is comprehensive.

As our discussion of Hawaii’s laws illustrate, the State’s

statutory scheme for the regulation of potentially harmful

plants is comprehensive. As explained, the scheme governs

the importation, sale, transportation, control, and eradication

of potentially harmful plants. The scheme also addresses

research and propagation of potentially harmful plants, HRS

§ 150A-6.1(d), and areas within the state where restricted

plants may not be introduced, id. § 152-3. It is true that the

DOA has not promulgated any rules to regulate some

concerns associated with GE crops, such as genetic

contamination of conventional crops and wild plant species. 

However, the State does have laws that would combat any

such crops should they prove “detrimental or potentially

harmful to agriculture, horticulture, the environment, . . . or

public health.” Id. § 150A-6.1(b). Moreover, as noted, the

State coordinates closely with APHIS on the regulation of

non-commercialized GE plants. We find that the State’s

extensive scheme for regulating potentially harmful plants

can only be described as comprehensive.

4. The State’s statutory scheme discloses a clear

inference that the legislature intended for the

State’s regulation of potentially harmful plants to

be exclusive of supplemental local rules.

Finally, we find that the statutory scheme for potentially

harmful plants discloses a clear inference that the legislature
ATAY V. COUNTY OF MAUI 41

intended for the State’s regulation of potentially harmful

plants to be exclusive of supplemental local regulations.

We find preemptive intent “apparent from the

pervasiveness of the . . .statutory scheme.” In re Application

of Anamizu, 481 P.2d 116, 119 (Haw. 1971). The

legislature’s broad conferral to the DOA of power to regulate

plant pests and invasive species, which per Maui’s Ordinance

may include GE crops, also supports an inference of

preemptive intent. Similarly, in Citizens Utilities Co. v.

County of Kauai, the Hawaii Supreme Court found a county

law regulating the height of utility poles was preempted by

state law that “expressly authoriz[ed a state agency] to

supervise and regulate public utilities,” even though the

statute did not address the specific subject of pole heights. 

814 P.2d 398, 400 (Haw. 1991).

Several specific provisions in the State’s statutory scheme

further evidence that the legislature intended for the State’s

regulatory oversight of potentially harmful plants to be

uniform and exclusive of supplemental local rules. HRS

§ 141-3 states that “pest designations shall be established by

rule, including the criteria and procedures for the designation

of pests for control or eradication.” HRS § 150A-6.1 states

that the Board of Agriculture “shall maintain a list of

restricted plants that require a permit for entry into the State.” 

HRS § 194-3 states that “[a] state department that is

designated as a lead agency under section [194-2(a)(7)], with

respect to a particular function of invasive species control,

shall have sole administrative responsibility and

accountabilityfor that designated function of invasive species

control.” These provisions indicate that the legislature

intended to preempt counties from controlling, eradicating, or

banning plants that the State has not designated as restricted
42 ATAY V. COUNTY OF MAUI

plants or invasive species. See HRS §§ 141-3, 150A-6.1,

194-3.

This intent to achieve uniformity in rules is made express

by HRS § 194-2(a), which directs the Invasive Species

Council to provide “policy level direction, coordination, and

planning among state departments, federal agencies, and . . .

local initiatives for the control and eradication of harmful and

invasive species.” Id. § 194-2(a). Although SHAKA

references several provisions that show that local

governments have a role to play in the fight against

potentially harmful plants, the provisions are consistent with

the position expressed in § 194-2(a) that the State is charged

with setting uniform rules to guide their efforts. See id.

§ 194-2(a) (directing the invasive species council to

“[i]nclude and coordinate with the counties in the fight

against invasive species”); id. § 150-27(a)(2) (directing the

DOA to “[c]ooperate with the United States Department of

Agriculture and other agencies or associations in seed law

enforcement”). Such provisions do not show that the

legislature intended to allow local governments to unilaterally

designate and ban plant pests. Rather, the State’s scheme

provides representatives from the county a seat at the table

where such decisions are made. See HRS § 26-16(a)

(providing for representatives from each county sit on the

Hawaii Board of Agriculture).

We conclude that the legislature intended to create an

exclusive, uniform, and comprehensive state statutoryscheme

for potentially harmful plants. By banning commercialized

GE plants, the Ordinance impermissibly intrudes into this
ATAY V. COUNTY OF MAUI 43

area of exclusive State regulation and thus is beyond the

County’s authority under HRS § 46-1.5(13) and preempted.16

III.

We hold that the district court did not err in denying

SHAKA’s motions to remand to state court, for Rule 56(d)

discovery, and to certify the state law questions presented to

the Hawaii Supreme Court. We deny the GE Parties’ motion

to dismiss. We hold that Maui’s Ordinance banning the

cultivation and testing of GE plants is preempted by the Plant

Protection Act’s express preemption clause in its application

to GE plants regulated by APHIS as plant pests, but not

expressly or impliedly preempted in its application to GE

plants that APHIS has deregulated. However, we further hold

that the Ordinance is impliedly preempted by Hawaii law in

its application to federally deregulated, commercialized GE

plants. Because we find the Ordinance invalid on other

grounds, we do not address whether the Ordinance violates

the Maui County Charter.

16 Well after oral argument, the GE Parties submitted a letter pursuant

to Fed. R. App. P. Rule 28(j) from Hawaii’s Attorney General and

attached a memo from a deputy attorney general analyzing state

preemption of Maui’s Ordinance. The memo declined to provide a

“formal opinion” but concluded that “agricultural matters involving

genetically modified plants and seeds are within the purview of the State,

not the counties.” The Attorney General’s letter enclosing the memo

states that it represents the Department of the Attorney General’s “latest

position on this matter,” but does not purport to represent the DOA’s

position. As SHAKA points out, this position is arguably inconsistent

with an earlier letter from the Department of the Attorney General, which

stated that there is no statewide statute addressing cultivation of

genetically modified organisms. While we have considered the

Department of the Attorney General’s position, we have given it little

weight given the circumstances.
44 ATAY V. COUNTY OF MAUI

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

Parties is AFFIRMED.