Hawaii GMO Litigation Not Slowing Down

March 9, 2015
Kristine A. Tidgren

The legal wrangling over the validity of local ordinances seeking to stop the growing of Genetically Engineered Organisms (GMO) continues in Hawaii. At the center of the litigation is United States Magistrate Judge Kurren, who, last Thursday, ruled that a state court action seeking a declaration that a Maui County GMO ban is legally valid was properly removed to federal court. 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 to federal court, even though the face of the complaint asserted only state law claims. The court refused the plaintiffs’ request to remand the case to state court.

The state case, which was filed by citizens opposed to GMO technology, arose on November 12, 2014, eight days after voters in the County of Maui approved "A Bill Placing a Moratorium on the Cultivation of Genetically Modified Engineered Organisms." 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).

With the state court action removed to federal court, the two cases will be heard together by Judge Kurren.

Last year, Judge Kurren struck down similar ordinances in the Counties of Hawaii and Kauai. In 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 cases are on appeal.

With the Maui injunction expiring March 31, there’s no doubt Judge Kurren will be busy again soon. It is likely he will resolve the Maui case before the Ninth Circuit weighs in on the Kauai and Hawaii cases. Stay tuned.

Note: 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.


The Kauai Ordinance can be read here.

The Hawaii Ordinance can be read here.

The Maui Ordinance can be read here.

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