A federal judge has invalidated Hawaii County’s partial ban on growing genetically engineered crops, dealing another blow to Hawaii’s growing movement against genetically modified organisms.

Judge Barry Kurren ruled Wednesday that Ordinance 13-121 is invalid because it is fully preempted by state law and partially preempted by federal law.

The lawsuit, filed in June by several Big Island farmers and flower growers, along with a national trade organization representing the biotech industry, challenged the Hawaii County ordinance that banned genetically engineered farming with the exception of existing crops.

The lawsuit is one of several filed over the past year challenging county regulations of the state’s $243 million seed industry. Less than two weeks ago, Monsanto and Dow AgroSciences filed a lawsuit to overturn Maui County’s new moratorium on GMO farming.

papaya trees

Papayas on the Big Island are genetically modified to protect them from a deadly virus.

Sophie Cocke/Civil Beat

The complaint from the Big Island farmers and Biotechnology Industry Organization contended that Bill 113, which Hawaii County passed last year, was not backed by scientific evidence. The suit said that genetically modified farming has become a “critical and generally accepted part of agriculture” over the last 20 years, and the ordinance violates both state and federal law.

In Wednesday’s decision, Kurren argued that although the state does not specifically regulate genetically modified crops, Ordinance 13-121 still conflicts with the work of state agencies.

He said the state Department of Agriculture and state Board of Agriculture comprise a “comprehensive statewide framework” governing plants that may “injure or harm agriculture, the environment or public health.”

“Clearly, the state legislature intended this network of the HDOA, the HBOA, and the advisory committee to have extensive and broad responsibilities over agricultural problems spanning the various counties to form a coherent and comprehensive statewide agricultural policy,” he wrote.

“In light of the comprehensive statutes and the network designed to address statewide agriculture problems, the Court concludes that the legislative intent for an exclusive, uniform and comprehensive state statutory scheme on the precise subject matter addressed by Ordinance 13-121 preempts the County’s ban on genetically engineered organisms.”

The ruling is in line with Kurren’s decision in August to invalidate a Kauai County ordinance that required large agricultural companies to disclose certain pesticides used and abide by buffer zones.

The county had sought to regulate pesticides in light of the state’s lax oversight, but Kurren said the county didn’t have the authority to do so.

A Victory for Agriculture or Setback for Democracy?

Lorie Farrell, spokeswoman for Hawaii Farmers and Ranchers United, which includes many of the plaintiffs, called Wednesday’s ruling a “victory for agriculture.”

“We do believe that when agriculture needs to be regulated it should be at the state or federal level,” she said. “It doesn’t work for them to have a patchwork of laws; it needs to be consistent.”

The Hawaii Crop Improvement Association, a trade group for seed companies in Hawaii that includes Monsanto, Syngenta and Dow AgroSciences, issued a statement echoing Farrell’s position.

“The judge’s decision today recognizes the importance of diverse, modern agricultural practices in Hawaii,” the group said. “All forms of modern agriculture are critical to preserving our links to our past heritage while moving the industry forward.”

Farrell added that in light of the ruling, the plaintiffs may seek to dismiss their lawsuit in state court that also challenges Ordinance 13-121.

“It’s a tremendous concern for me when chemical companies overrule democracy.” — Sen. Russell Ruderman

Hawaii County attorney Kathy Garson said the county is deciding whether or not to appeal, and that the ruling wasn’t unexpected.

“Obviously we’re disappointed but we’re not surprised, given the decision in Kauai,” she said, explaining that the ruling changes little about the status quo because the county hadn’t started enforcing the ban.

George Kimbrell, an attorney at the national nonprofit Center for Food Safety that filed an amicus brief in support of Hawaii County, said he felt the same way but that the fight is not over.

“At CFS, we’re going to continue to stand and defend the will of the people of Hawaii to protect themselves, their local farms and their environment from the harms of genetically engineered crops and their pesticides,” he said, noting that the group is considering all its legal options.

The organization is also appealing Kurren’s decision in the Kauai case, in which CFS intervened to defend the county. “It’s a setback, but it’s not the end of the story,” Kimbrell said.

The decision could have implications for the ongoing case against Maui County’s newly approved moratorium on genetically modified crops. Farrell said she thinks the decision bodes well for overturning the Maui measure, but Kimbrell said he doesn’t think the Big Island ruling will have a huge bearing on the case.

“Because the Maui litigation is around a moratorium and not a ban, it’s fundamentally different questions of law,” Kimbrell said.

Regardless, Kurren’s interpretation of the law could spur legislators to change it. Senate Agriculture Chairman Russell Ruderman from the Big Island said Wednesday that he was “tremendously disappointed” with the ruling, noting that he may introduce a bill in January that expressly gives counties the authority to regulate agriculture.

“Obviously this is a legal issue that we’re going to have to look at in the Legislature,” he said. “It’s a tremendous concern for me when chemical companies overrule democracy.”

Read the judge’s decision below:

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