Federal Court Says Maui County GMO Ban Unenforceable

July 1, 2015 | Kristine A. Tidgren

Federal Judge Susan Mollway has struck down a Maui County Ordinance banning GMO crops. "A Bill Placing a Moratorium on the Cultivation of Genetically Modified Engineered Organisms" was passed by ballot initiative on November 4, 2014. Litigation over the Ordinance ensued immediately. On November 12, 2014, a group of citizens opposed to GMO technology filed a state court action seeking a declaration that the Ordinance was valid. The defendants removed the case to federal court and in Atay v. County of Maui, No. 14-00582, 2015 U.S. Dist. LEXIS 26951 (D. Hawaii March 5, 2015), Judge Kurren ruled that the defendants, which included Monsanto Co. and Dow Agrisciences, properly removed the case.

On November 13, 2014, another set of plaintiffs, including Robert Ito Farm, Monsanto, and the Hawaii Farm Bureau Federation, filed a federal lawsuit seeking to invalidate the Ordinance. Judge Kurren issued an injunction enjoining enforcement of the Ordinance until December 5, 2014. The parties then entered into a stipulation with the County to agree to continue the injunction through March 31, 2015. (Robert Ito Farm, Inc. v. County of Maui, No. 1:2014cv00511). On March 19, 2015, Judge Susan Mollway signed an order extending the injunction until such time as the court decides the merits of the case.

On June 30, 2015, that day arrived.1 As Judge Kurren had done with Kauai and Hawaii County GMO bans,2 Judge Mollway--in a ruling governing both the Ito and Atay cases--ruled that the Maui Ordinance was unenforceable. Specifically, the court found that the Ordinance was preempted by the federal Plant Protection Act and its regulations. The court also found that the Ordinance was preempted by a comprehensive scheme of state statutes and regulations governing agricultural  policy  designed to be exclusive and uniform throughout the state.

In addition to finding that the Ordinance was preempted by state and federal law, the court ruled that the Ordinance exceeded the authority delegated to Maui County by the State Legislature.The court held that the fine provisions in the Ordinance, which could go as high as $50,000 per violation, exceeded the $1,000 maximum fine authorized by the Maui County Charter.

The court was careful to state "so that no lay party has any misapprehension at this point" that the ruling was "purely on legal grounds." No portion of the ruling, the court clarified, said anything about whether genetically engineered organisms are "good or bad or about whether the court thinks the substance of the Ordinance would be beneficial to the County."

This case will now likely move to the Ninth Circuit, joining the similar Kauai and Hawaii County cases on appeal. 

1This consolidated case ruling can be found at 2015 U.S. Dist. LEXIS 84709.

2In Syngenta Seeds v. County of Kauai, NO. 14-00014 BMK, 2014 U.S. Dist. LEXIS 117820 (D. Haw. Aug. 23, 2014), the court found that a County of Kauai ordinance was preempted by state law. In Hawaii Floriculture &  Nursery Ass’n v. County of Hawaii, No. 14-00267, 2014 WL 6685817 (D. Haw. Nov. 26, 2014), the court ruled that the County of Hawaii ordinance was preempted by state and federal law. Both decisions are on appeal.