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Wednesday, November 26, 2014
Judge Kurren Strikes Down Hawaii County Anti-GMO Ordinance
By News Release @ 4:03 PM :: 2764 Views


From Hawaii Farmers and Ranchers United November 26, 2014

The Short and Sweet Version of today's ruling on Hawaii County Bill 113... It's INVALID, which we have said all along.

In an Order issued earlier today, Judge Kurren ruled in favor of the Hawaii Floriculture and Nursery Association and all of the other Plaintiffs and against the County of Hawaii.

The Court’s Order enjoins the County from any further implementation or enforcement of Bill 113 (Ordinance 13-121, now codified as HCC §§ 14-128 et seq.).

In reaching his decision, Judge Kurren found that the County’s Ordinance:

  • “is preempted by Hawaii state law”,
  • “is, in part, expressly preempted by the federal Plant Protection Act”, and
  • “therefore … is invalid.”


  *   *   *   *   *


From Hawaii Farmers and Ranchers United, November 26, 2014

“The most important thing we will need as we move into an uncertain future is the spirit of aloha. Lets all move forward together.”  Richard Ha – Hawaii Farmer

We did our best to break down the Judge’s decision today by what it really means to Hawaii and Farmers. This decision in our opinion was vital in moving us forward in this discussion.

In an Order issued earlier today, Judge Kurren ruled in favor of the Hawaii Floriculture and Nursery Association, The Hawaii Cattlemen’s Council, The Hawaii Papaya Industry, Pacific Floral Exchange, Green Point Nursery, Eric Tanouye, Jason Moniz, Ross Sibucao, Gordon Inouye  and all of the Plaintiffs and against the County of Hawaii.  The Court’s Order enjoins the County from any further implementation or enforcement of Bill 113 (Ordinance 13-121, now codified as HCC §§ 14-128 et seq.).

In reaching his decision, Judge Kurren found that the County’s Ordinance: “is preempted by Hawaii state law”, “is, in part, expressly preempted by the federal Plant Protection Act”, and “therefore … is invalid.”

In addition:

The Court rejected the County’s assertion that the Plaintiffs did not have standing to challenge Bill 113.  Specifically, the Court held that Plaintiffs Pacific Floral Exchange and Gordon Inouye had established that they “use their property for a particular use—i.e., field testing—and that they suffer injury when the continued use of their property for such purpose is threatened by the Ordinance.”  Under the law, because Plaintiffs Pacific Floral and Gordon Inouye have standing, the Court could proceed to decide the challenge without specifically determining the standing of the remaining plaintiffs.

  • On the issue of state preemption, the Court found that:  “In light of the comprehensive [state] statutes and the network designed to address statewide agriculture problems, the Court concludes that legislative intent for an exclusive, uniform, and comprehensive state statutory scheme on the precise subject matter addressed by [the] Ordinance preempts the County’s ban on genetically engineered organisms.  Accordingly, Ordinance 13-121 is invalid.”  The Court also rejected the County’s argument that the state pre-emption issue should be decided by the Hawaii Supreme Court.
  • The Court held that Bill 113 is pre-empted by federal law, and therefore is invalid, to the extent the Ordinance bans field testing of plants subject to regulation by the United States Department of Agriculture pursuant to the Plant Protection Act and its regulations:   “Specifically, the Court concludes that the ban is preempted to the extent it prohibits field testing of ‘regulated articles’ under 7 C.F.R Part 340 that are ‘plant pests’ or ‘noxious weeds.’”
  • The Court did not agree with Plaintiffs that Bill 113 is invalid because it stands as an obstacle to the general cultivation of genetically engineered plants ensured by the Plant Protection Act or the federal government’s Coordinated Framework for Regulation of Biotechnology.  This holding does not impact the Court’s decision that Bill 113 is invalid.
  • Finally, the Court rejected the County’s argument that the Court’s decision as to Plaintiffs’ challenge should be deferred until the County had the opportunity to take discovery from the Plaintiffs.  In the Court’s view, the County had sufficient time to conduct discovery and discovery would not have changed the outcome.

Judge Kurren’s Order disposes of the case and it is now up to the County to decide whether to seek an appeal.

Mahalo to all the farmers and ranchers who United their organizations to stand up against this challenge and fought hard to achieve this result.

  *   *   *   *   *

HTH: Kurren is also the magistrate judge for a similar challenge to Maui County’s new law banning cultivation of genetically modified organisms


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