Syngenta Seeds, Inc. v. County of Kauai

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SYNGENTA SEEDS, INC., a No. 14-16833
Delaware corporation;
SYNGENTA HAWAII, LLC; D.C. No.
PIONEER HI-BRED 1:14-cv-00014-BMK
INTERNATIONAL, INC., an Iowa
corporation; AGRIGENETICS,
INC., a Delaware corporation;
BASF PLANT SCIENCE LP, a
Delaware limited partnership,
Plaintiffs-Appellees,

v.

COUNTY OF KAUAI,
Defendant-Appellant,

and

KA MAKANI HO’OPONO;
CENTER FOR FOOD SAFETY;
PESTICIDE ACTION NETWORK
NORTH AMERICA; SURFRIDER
FOUNDATION,
Intervenor-Defendants.
2 SYNGENTA SEEDS V. CTY. OF KAUAI

SYNGENTA SEEDS, INC., a No. 14-16848
Delaware corporation;
SYNGENTA HAWAII, LLC; D.C. No.
PIONEER HI-BRED 1:14-cv-00014-BMK
INTERNATIONAL, INC., an Iowa
corporation; AGRIGENETICS,
INC., a Delaware corporation; OPINION
BASF PLANT SCIENCE LP, a
Delaware limited partnership,
Plaintiffs-Appellees,

v.

COUNTY OF KAUAI,
Defendant,

and

KA MAKANI HO’OPONO;
CENTER FOR FOOD SAFETY;
PESTICIDE ACTION NETWORK
NORTH AMERICA; SURFRIDER
FOUNDATION,
Intervenor-Defendants-
Appellants.

Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding

Argued and Submitted June 15, 2016
Honolulu, Hawaii
 SYNGENTA SEEDS V. CTY. OF KAUAI 3

Filed November 18, 2016

Before: Sidney R. Thomas, Chief Judge, and Consuelo M.
Callahan and Mary H. Murguia, Circuit Judges.

Opinion by Judge Callahan

SUMMARY*

Hawaii State Law / Preemption

The panel affirmed the district court’s conclusion that the
Hawaii Pesticides Law impliedly preempted Kauai County’s
Ordinance 960’s pesticide provisions, which regulate
pesticides and genetically engineered plants; and affirmed the
district court’s denial of defendants’ motion to certify the
implied preemption question to the Hawaii Supreme Court.

Ordinance 960 imposes pesticide notification
requirements and mandates “pesticide buffer zones.” Kauai
County Code § 22-23.5(a). Part III of the Hawaii Pesticides
Law regulates the use of pesticides, including where
pesticides may be applied. HRS § 149A-31-149A-37.

The panel applied the Hawaii Supreme Court’s
“‘comprehensive statutory scheme’ test,” Richardson v. City
& Cty. of Honolulu, 868 P.2d 1193, 1208 (Haw. 1994), to
decide plaintiffs’ field-preemption claim under HRS § 46-
1.5(13). First, the panel held that Ordinance 960’s pesticide

*
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 SYNGENTA SEEDS V. CTY. OF KAUAI

provisions and the Hawaii Pesticides Law addressed the same
subject matter. Next, the panel held that the State’s scheme
for the regulation of pesticides was comprehensive. Finally,
the panel held that the Hawaii legislature clearly intended for
the State’s regulation of pesticides to be uniform and
exclusive. The panel concluded that Ordinance 960’s
pesticide provisions were impliedly preempted by Hawaii law
and beyond the County’s power.

The panel held that certification to the Hawaii Supreme
Court was unnecessary because the State’s test for implied
state preemption was well-defined.

COUNSEL

David J. Minkin (argued), Jesse J. T. Smith, and Troy H.H.
Andrade, McCorriston Miller Mukai McKinnon LLP,
Honolulu, Hawaii, for Defendant-Appellant.

Paul H. Achitoff (argued), Earthjustice, Honolulu, Hawaii;
Sylvia Shih-Yau Wu and George A. Kimbrell, Center for
Food Safety, San Francisco, California; for Intervenor-
Defendants-Appellants.

Margery S. Bronster (argued), Donna C. Marron, and Rex Y.
Fujichaku, Bronster Fujichaku Robbins, Honolulu, Hawaii;
Christopher Landau (argued), Kirkland & Ellis LLP,
Washington, D.C.; Clair Wong Black and Paul Alston, Alston
Hunt Floyd & Ing, Honolulu, Hawaii; for Plaintiffs-
Appellees.
 SYNGENTA SEEDS V. CTY. OF KAUAI 5

OPINION

CALLAHAN, Circuit Judge:

Kauai County passed Ordinance 960 to regulate pesticides
and genetically engineered (GE) plants. The Ordinance
requires commercial farmers to maintain “buffer zones”
between crops to which pesticides are applied and certain
surrounding properties, provide notifications before and after
applying pesticides, and file annual reports disclosing the
cultivation of GE crops. We must decide whether Ordinance
960’s pesticide provisions are impliedly preempted by Hawaii
state law, as the district court held below.1 Applying the
Hawaii Supreme Court’s “‘comprehensive statutory scheme’
test,” Richardson v. City & Cty. of Honolulu, 868 P.2d 1193,
1208 (Haw. 1994), we affirm.

I.

A. Plaintiffs’ farming operations on Kauai

Plaintiffs-Appellees Syngenta Seeds, Inc., Syngenta
Hawaii, LLC, Pioneer Hi–Bred International, Inc.,
Agrigenetics, Inc., and BASF Plant Science LPs are
companies that supply seed for GE plants. Plaintiffs grow a
variety of GE seed crops on Kauai, including corn, soybeans,
canola, and rice. As further explained in our concurrently
filed opinion in Atay v. County of Maui, No. 15-16466, such
GE crops have numerous important uses and play a major
role in our nation’s food supply. However, GE crops also

1
We address state preemption of Ordinance 960’s GE crop
notification requirement in a memorandum disposition filed concurrently
with this opinion.
6 SYNGENTA SEEDS V. CTY. OF KAUAI

present several well-documented economic and
environmental risks.

This case arises primarily from concern about Plaintiffs’
use of insecticides, herbicides, and fungicides (collectively
pesticides) in their farming operations on Kauai. They use
both general use pesticides (GUPs), which under federal and
state law may be applied by anyone in accordance with label
instructions, and restricted use pesticides (RUPs), which may
only be applied by applicators certified by the State or
persons under their direct supervision. See 7 U.S.C. § 136i.
Pesticides are useful for controlling pests and thus increasing
crop yields, but their application can have detrimental effects
on humans and the environment. For example, with respect
to human health impacts, some studies have found that long-
term exposure to some pesticides may increase the risks of
diseases, including cancer, autism, Parkinson’s disease, and
childhood leukemia. With respect to environmental impacts,
studies have found that some pesticides can harm insects and
native plants, alter soil ecology, and increase the number and
prevalence of herbicide-resistant pests.

Kauai residents have reported experiencing medical
symptoms due to contact with pesticides applied on
Plaintiffs’ farms. Additionally, a University of Hawaii study
detected pesticides in indoor and outdoor air samples
collected at a Kauai middle school, albeit at concentrations
“well below health concern exposure limits or applicable
screening levels.”

B. Kauai County Ordinance 960

In 2013, the Kauai County Council passed Ordinance 960
in order to “inform the public, and protect the public from any
 SYNGENTA SEEDS V. CTY. OF KAUAI 7

. . . negative impacts on the health and natural environment of
the people and place of the County” associated with
commercial farming operations, including the use of
pesticides. Kauai County Code (KCC) § 22-23.2.2 Relevant
here, the Ordinance imposes several requirements on
“commercial agricultural entities” (CAEs) in connection with
the application of RUPs in Kauai.3

The Ordinance’s notification provisions require CAEs to
make notifications before and after applying RUPs. Id. § 22-
23.4(a). Specifically, the “worker protection” provision
requires CAEs to post warning signs that comply with U.S.
Environmental Protection Agency guidelines twenty-four
hours prior to the application of a pesticide, during
application, and after application for the “restricted-entry
period” established by the EPA. Id. § 22-23.4(a)(1). The
“Good Neighbor” provision requires CAEs to send weekly
“Good Neighbor Courtesy Notices” to interested beekeepers
and people who own or occupy property within 1,500 feet of
the property where the pesticide will be applied. The notices
must address the pesticide to be used, its active ingredient,
and the date, time, and field number of its use. Id. § 22-
23.4(a)(2). Following the application of RUPs, the Ordinance
also requires CAEs to submit to Kauai’s Office of Economic
Development and post online weekly “public disclosure

2
The bill was originally introduced in June 2013 as Bill 2491, enacted
as Ordinance 960, and codified as KCC § 22-23.1–23.8 (2014).
3
A CAE is defined as “a firm, corporation, association, partnership,
or any organized group of persons . . . engaged in growing, developing,
cultivating, or producing agricultural products.” KCC § 22-23.3. The
pesticide provisions only apply to CAEs that purchased or used in excess
of five pounds or fifteen gallons of any single RUP during the prior
calendar year.
8 SYNGENTA SEEDS V. CTY. OF KAUAI

reports” “compiling the actual application of all pesticides
during the prior week.” Id. § 22-23.4(a)(3). These reports
must detail the date and time of application, the field number
and total acreage to which the pesticide was applied, the
pesticide’s trade name, EPA registration number, and active
ingredient, the gallons or pounds of the pesticide used, and
the temperature, wind direction, and wind speed at the time
of application. Id.

In addition to these notification requirements, Ordinance
960 requires CAEs to establish “buffer zones” between crops
to which RUPs are applied and certain surrounding
properties, such as schools and waterways.4 Id. § 22-23.5(a).
The buffer zone’s size varies depending on the type of
neighboring property.

Finally, Ordinance 960 requires the County to complete
an Environmental and Public Health Impact Study (EPHIS)
to address “environmental and public health questions related
to large-scale commercial agricultural entities utilizing
pesticides and genetically modified organisms.” Id. § 22-
23.6. The EPHIS may recommend “possible actions the
County may take in order to address any significant effects,
public health impacts, or both.” Id. § 22-23.6.

“[A]ny person, firm, or corporation” violating Ordinance
960 is subject to a civil fine of $10,000 to $25,000 per day,
per violation. Id. § 22-23.7(a). Additionally, violators are

4
While subsections (1) and (2) suggest that “no crops” may be grown
in the buffer zones, prefatory section (a) and the provision’s title make
clear that the provision does not bar all crops from being grown in buffer
zones, but only those to which pesticides are applied. KCC § 22-23.5(a).
 SYNGENTA SEEDS V. CTY. OF KAUAI 9

guilty of a misdemeanor punishable by a fine of up to $2,000
or a year imprisonment for each offense. Id. § 22-23.7(b).

After the County Council passed Ordinance 960, the
Mayor of Kauai vetoed it. The Mayor explained that he
“agree[d] fully with the general intent of [the] bill,” including
the pesticide notification and EPHIS provisions. However, he
did not support the buffer-zone provision and, citing a legal
opinion by the County Attorney, concluded “that Kauai does
not currently have the legal authority to enact most of what is
contained” in the bill. On November 16, 2013, the County
Council overrode the veto and enacted Ordinance 960 into
law.

C. Procedural History

On January 10, 2014, Plaintiffs sued the County of Kauai
in district court challenging Ordinance 960. As subsequently
amended, Plaintiffs’ complaint asserted thirteen claims for
relief and sought a declaratory judgment that the Ordinance
is invalid under federal, state, and county law, and an
injunction against its enforcement. Relevant here, the first
claim asserted that state law impliedly preempts the
Ordinance’s pesticide provisions. A coalition of Ka Makani
Ho’opono, the Center for Food Safety, the Pesticide Action
Network North America, and the Surfrider Foundation
intervened on behalf of the County.

On August 25, 2014, the district court granted in part and
denied in part the cross-motions for summary judgment.
Syngenta Seeds, Inc. v. Cty. of Kauai, No. CIV. 14-00014
BMK, 2014 WL 4216022 (D. Haw. Aug. 25, 2014). While
emphasizing that its decision “in no way diminishes the
health and environmental concerns of the people of Kauai,”
10 SYNGENTA SEEDS V. CTY. OF KAUAI

the court concluded that Ordinance 960’s pesticide provisions
are impliedly preempted by state law. Id. at *1. The court
acknowledged that the County has authority under state law
to regulate agricultural activities, id. at *3–4, but found the
pesticide provisions preempted because they address the same
subject matter regulated by a comprehensive statutory scheme
that the Hawaii legislature intended to be uniform and
exclusive. Id. at *7–9. The district court declined to certify
the implied preemption question to the Hawaii Supreme
Court. Id. at *15. The County and Defendant-Intervenors
(collectively Defendants) timely appealed. We have
jurisdiction under 28 U.S.C. § 1291.

II.

On appeal, the County and Defendant-Intervenors
contend that the district court erred in finding Ordinance
960’s pesticides provisions impliedly preempted by state law.
They also argue that the district court erred in denying their
motion to certify the implied preemption issue to the Hawaii
Supreme Court and, alternatively, ask us to certify the issue.
We review the district court’s grant of summary judgment on
preemption grounds de novo, Wolfe v. BNSF Ry. Co., 749
F.3d 859, 863 (9th Cir. 2014), and a decision not to certify a
state-law question for abuse of discretion, Riordan v. State
Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th Cir. 2009).

A. Implied state preemption analysis under Hawaii law

The state preemption question before us stems from HRS
§ 46-1.5(13), which delegates to counties “the power to enact
ordinances deemed necessary to protect health, life, and
property . . . on any subject or matter not inconsistent with, or
tending to defeat, the intent of any state statute . . .
 SYNGENTA SEEDS V. CTY. OF KAUAI 11

disclos[ing] an express or implied intent that the statute shall
be exclusive or uniform throughout the State.”5 The Hawaii
Supreme Court has ruled that a county ordinance issued
pursuant to section 46-1.5(13) is invalid if it conflicts with
state law or legislates in a field that the legislature reserved
for uniform and exclusive state regulation. Richardson, 868
P.2d at 1209. Only the second type of preemption, called
field preemption, is at issue here: Plaintiffs argue that
Ordinance 960 impermissibly regulates pesticides, which is
a subject that the Hawaii legislature reserved for exclusive
treatment by the State.

Hawaii courts apply a “‘comprehensive statutory scheme’
test” to decide field-preemption claims under HRS § 46-
1.5(13). Pac. Int’l Servs. Corp. v. Hurip, 873 P.2d 88, 94
(Haw. 1994). 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, 868 P.2d at 1208–09; see also Citizens
Utils. Co. v. Cty. of Kauai, 814 P.2d 398, 400 (Haw. 1991).
Courts frequently treat 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. See, e.g., Stallard v. Consolidated Maui, Inc., 83
P.3d 731, 736 (Haw. 2004); Richardson, 83 P.3d at 1209.

The Hawaii Supreme Court has emphasized that the
“critical determination to be made” is “whether the statutory

5
The Hawaii Supreme Court has held that the law contains a drafting
error and must be read as modified above. Richardson, 868 P.2d at 1207.
12 SYNGENTA SEEDS V. CTY. OF KAUAI

scheme at issue indicate[s] a legislative intention to be the
exclusive legislation applicable to the relevant subject
matter.” Hurip, 873 P.2d at 94. Thus, even where a local law
addresses a subject covered by a comprehensive and uniform
state statutory scheme, the local law is not preempted where
the state scheme does not evince the legislature’s intent to be
exclusive. Id. (finding that the legislature intended a state
law only “to establish a minimum level of insurance
protection”).

The Parties dispute how clear of a showing of legislative
intent to preempt is required for a local law to be deemed
invalid. Plaintiffs contend that, unlike federal law, there is no
presumption against preemption under state law because
Hawaii counties only have authority delegated to them by the
State. Defendants contend that there is a presumption against
state preemption of local laws, and thus the legislature’s
intent to preempt must be “clear” in order for a local law to
fail. They argue that this presumption is particularly strong
where, as here, a local government regulates land use or
another area over which it traditionally has exercised control.

The Hawaii Supreme Court has not squarely addressed
whether there is a presumption against state preemption. It is
true that there is no presumption of dual sovereignty between
the State and the counties, because counties, unlike states,
lack inherent or residual authority. In re Application of
Anamizu, 481 P.2d 116, 118 (Haw. 1971). However, the
Hawaii Supreme Court has presumed that a county’s exercise
of police power is within its delegated authority so long as the
legislature did not “clearly intend[] to preempt the field of
regulation.” Haw. Gov’t Employees’ Ass’n v. Maui, 576 P.2d
1029, 1038 (Haw. 1978). Thus, where a county’s exercise of
police power is at issue, the showing of legislative intent
 SYNGENTA SEEDS V. CTY. OF KAUAI 13

necessary for state law to preempt local law under Hawaii’s
preemption analysis is similar to, if perhaps not quite as
demanding as, the showing required for purposes of federal
preemption, a “‘clear and manifest purpose’ to pre-empt local
authority.” See Wisc. Public Intervenor v. Mortier, 501 U.S.
597, 607 (1991).

The Parties also dispute whether the Hawaii
Constitution’s conservation clause alters the preemption
analysis where local laws aimed at conserving and protecting
the environment are at issue. The County contends that
Article XI, § 1’s directive that “the State and its political
subdivisions shall conserve and protect Hawaii’s natural
beauty and all natural resources” compels it to regulate
pesticide use, and cannot be overcome by state statute.
Defendants support their argument with Robinson Township
v. Pennsylvania, where the Pennsylvania Supreme Court
found that a state law expressly preempting local oil and gas
regulations impermissibly abrogated “constitutional
commands regarding municipalities’ obligations and duties to
their citizens” under the Pennsylvania Constitution. 83 A.3d
901, 977 (Pa. 2013).

We are not persuaded. Hawaii law is clear that counties
lack inherent authority under the Hawaii Constitution. Haw.
Gov’t Employees’ Ass’n, 576 P.2d at 1038; In re Application
of Anamizu, 481 P.2d at 118. It follows that counties have no
power to conserve the public trust unless the State has
delegated to them the authority to do so. As noted, under
HRS § 46-1.5(13), counties are not permitted to use their
police power to enact ordinances that conflict with state law
or intrude upon areas expressly or impliedly reserved for state
regulation. In other words, the conservation clause may
obligate counties to use their authority to conserve public-
14 SYNGENTA SEEDS V. CTY. OF KAUAI

trust resources, but it does not permit counties to exercise
power that the State has not granted them. The provision
therefore is irrelevant to the question presented in this case:
whether Ordinance 960 is beyond the County’s police power
under HRS § 46-1.5(13) because it is impliedly preempted by
state law. We turn to that question now.

B. The Hawaii Pesticides Law preempts Ordinance 960’s
pesticide provisions.

Under Hawaii’s comprehensive statutory scheme test, the
question presented is whether Ordinance 960’s pesticides
provisions cover the same subject matter as state law that
creates a comprehensive regulatory scheme and discloses
clear legislative intent to be uniform and exclusive of
supplemental local regulation.

1. Ordinance 960’s pesticide provisions and the
Hawaii Pesticides Law address the same subject
matter.

Ordinance 960 imposes pesticide notification
requirements and mandates “pesticide buffer zones.” KCC
§ 22-23.5(a). As detailed below, the Hawaii Pesticides Law
and its implementing rules also regulate pesticides, including
by imposing notification requirements and conditions of use,
such as locations of permissible use. See HRS Ch. 149A.

Part III of the Hawaii Pesticides Law regulates the use of
pesticides, including where pesticides may be applied. HRS
§§ 149A-31–149A-37. For example, HRS § 149A-31 lists
“prohibited acts.” The provision prohibits use “of any
pesticide in a manner inconsistent with its label,” with several
enumerated exceptions. The provision makes clear that
 SYNGENTA SEEDS V. CTY. OF KAUAI 15

pesticide labels may specify “a crop, animal, or site” to which
pesticides may be applied. Id. § 149A-31(1)(B) (emphasis
added). The provision also prohibits application of RUPs
except by certified pesticide applicators or someone under
their direct supervision, id. § 149A-31(3), and bars
application of any pesticides through particular devices, id.
§ 149A-31(6).

This list of prohibited acts in Part III is not exhaustive.
Rather, section 149A-32.5 vests the chairperson of the State’s
Board of Agriculture with the authority to “suspend, cancel,
or restrict the use of certain pesticides or specific uses of
certain pesticides when the usage is determined to have
unreasonable adverse effects on the environment.” See also
id. § 149A-19 (directing the Board of Agriculture to
“establish a system of control over the distribution and use of
certain pesticides and devices purchased by the consuming
public”). Section 149A-33 also authorizes the Hawaii
Department of Agriculture to enact rules to carry out the
Hawaii Pesticides Law. This authority includes but is not
limited to the power to “establish limitations and conditions
for the application of pesticides” by equipment and to
“establish, as necessary, specific standards and guidelines
which specify those conditions which constitute unreasonable
adverse effects on the environment.” Id. § 149A-33.

Pursuant to this authority, the Department of Agriculture
has enacted additional rules addressing pesticide use,
including locations of use. A Department of Agriculture rule
requires “directions for use” on labels to address, among
other things, “[r]equired intervals between application and
harvest of food or feed crops,” “rotational crop restrictions,”
and “[w]arnings as required against use on certain crops,
16 SYNGENTA SEEDS V. CTY. OF KAUAI

animals, objects, or in or adjacent to certain areas.” HAR
§ 4-66-23(9)(A), (C).

As these provisions show, Hawaii law addresses the same
subject matter as Ordinance 960’s buffer-zone provision:
permissible areas of pesticide application.

The Hawaii Pesticides Law also addresses the specific
subject of notification and record-keeping requirements. For
example, the law establishes notification and record-keeping
requirements in connection with the sale of pesticides. HRS
§ 149A-15.5 requires retailers to “post a warning sign with
respect to the sale of pesticides” to address “proper handling,
storage, and disposal of all pesticides sold” and “[e]mergency
telephone numbers to call in case of poisoning from the
pesticides.” Persons permitted to sell RUPs are required to
“keep records of the individual sales of these pesticides.” Id.
§ 149A-17. Under the Department of Agriculture’s rules,
licensed dealers are further required to “keep a record of each
sale, distribution, delivery, theft, spill, or any other activity
affecting the amount of [RUPs] and pesticides requiring an
annual permit.” HAR § 4-66-53.

State law also establishes notification and warning
requirements in connection with the application of pesticides.
In addition to requiring “warnings and precautionary
statements” on labels, see HAR §§ 4-66-17, 4-66-19, a
Department of Agriculture rule requires that “[c]ommercial
applicators applying any pesticide in agricultural operations
must . . . furnish a written record . . . to the agricultural
 SYNGENTA SEEDS V. CTY. OF KAUAI 17

employer before the pesticide is applied,” id. § 4-66-62(c).6
The Department of Agriculture has also enacted reporting and
approval requirements before RUPs may be applied by
aircraft. Id. § 4-66-64.

State law addresses post-application record keeping as
well. The legislature delegated to the Department of
Agriculture the authority to “establish, as necessary, record
keeping requirements for pesticide use by applicators.” HRS
§ 149A-33. Pursuant to this authority, the agency enacted
rules requiring pesticide applicators to “keep records of all
applications of [RUPs] applied.” HAR § 4-66-62(a). These
reports must contain fourteen categories of information. Id.
§ 4-66-62(b). Section 149A-31.2 further directs the
Department of Agriculture to publish online RUP “records,
reports, or forms submitted” to it, with limited exceptions.

As these provisions show, Hawaii law addresses the same
subject matter as Ordinance 960’s pesticide notification
provisions: warnings regarding the application of RUPs.

2. The State’s scheme for the regulation of pesticides
is comprehensive.

Defendants argue that even if Hawaii law and Ordinance
960 address the same subject matter, the state law’s treatment
of pesticides is not comprehensive. They contend that the

6
This notice must address “(1) The specific location and description
of the treated area; (2) Time and date of application; (3) Product name,
EPA registration number, and active ingredient(s); (4) Restricted entry
interval; (5) Whether posting and oral notification are required; and (6)
Any other product-specific requirements on the product labeling
concerning protection of workers or other persons during or after
application.” Id.
18 SYNGENTA SEEDS V. CTY. OF KAUAI

state requirements are “procedural and remedial,” while
Ordinance 960 is “substantive and prophylactic.”

Even if regulatory fields may be parsed so finely in
determining whether their occupation by the State is
comprehensive, Defendants’ argument fails. State law
imposes “substantive and prophylactic” measures. For
example, state law regulates a pesticide’s effects on human
health and the environment through labeling and licensing
requirements. See, e.g., HRS §§ 149A-11, 149A-31. As
mentioned, “directions for use” on pesticide labels must
include “[l]imitations or restrictions on use required to
prevent unreasonable adverse effects on humans or the
environment,” including “[w]arnings as required against use
. . . in or adjacent to certain areas.” HAR § 4-66-23(9). Such
restrictions are not simply procedural or informational; they
impose restrictions on pesticide use the violation of which
may result in civil and criminal penalties, as well as the
suspension or revocation of licenses for pesticide application
and sale. See, e.g., HRS § 149A-41. State law also requires
pre-application warnings, which, like use and licensing
regulations, are clearly “prophylactic” in nature. See HAR
§§ 4-66-62(c), 4-66-64.

More generally, the state statutory scheme’s breadth of
treatment of pesticides demonstrates its comprehensiveness.
The Hawaii Pesticides Law and its implementing rules
address the entire life cycle of pesticides, including
research/experimentation, transportation, storage, sale, use,
and disposal. See, e.g., HRS § 149A-37 (addressing research
and experimental work); id. §§ 149A-11–149A-23
(addressing transportation, storage, and sale); id. §§ 149A-
31–37 (addressing use); HAR § 4-66-54 (addressing
disposal). State law also creates a system for investigation
 SYNGENTA SEEDS V. CTY. OF KAUAI 19

and enforcement of violations. See HRS §§ 149A-21, 14A-
36, 149A-41; HAR §§ 4-66-32.1, 4-66-66.1.

We find that the state’s statutory scheme for pesticides is
comprehensive.

3. The legislature clearly intended for the State’s
regulation of pesticides to be uniform and
exclusive.

Finally, it is clear that the Hawaii legislature intended for
the State’s regulation of pesticides to be uniform and
exclusive of additional, local rules.

The pervasiveness of the statutory scheme, which
regulates in detail the full life cycle of pesticides, creates a
reasonable inference that the legislature left no room for
counties to impose further regulations. See In re Application
of Anamizu, 481 P.2d at 119 (finding legislative intent to
preempt “apparent from the pervasiveness of the . . . statutory
scheme”). The Hawaii Pesticides Law’s pervasiveness
differentiates the law from the federal pesticides law, the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),
which the Supreme Court found did not preempt local laws in
Mortier. In Mortier, the Supreme Court observed that FIFRA
“leaves substantial portions of the field vacant, [including] an
affirmative permit scheme for the actual use of pesticides.”
501 U.S. at 613. By contrast, the Hawaii Pesticides Law
establishes a permit scheme for actual use and does not leave
vacant any other substantial part of the field of pesticides
regulation.

Moreover, the Hawaii legislature stated its intention for
the Hawaii Pesticides Law to be uniform in HRS § 149A-19,
20 SYNGENTA SEEDS V. CTY. OF KAUAI

which is entitled “Determination; rules; uniformity.” To
achieve the stated goal of uniformity, the legislature directed
the Board of Agriculture to “adopt rules applicable to and in
conformity with the primary standards established by this
chapter or as prescribed by FIFRA with respect to pesticides.”
HRS § 149A-19(c).7 The legislature also expressed the goal
of uniformity in directing the Department of Agriculture to
cooperate with other state agencies and “the federal
government for the purpose of carrying out this chapter and
securing uniformity of rules” governing pesticides. HRS
§ 149A-23 (emphasis added).

The Hawaii legislature’s goal of establishing a uniform
system of pesticide control and its delegation, in furtherance
of this goal, of rulemaking and licensing authority to the
Department of Agriculture clearly evince an intent to preempt
local regulation. As the Hawaii Supreme Court has
explained, such a state statutory scheme cannot reasonably be
interpreted to allow for supplemental local regulation because
differing local laws would defeat the goal of uniformity. For
example, in In re Application of Anamizu, the Hawaii
Supreme Court concluded that a city ordinance regulating
contractors was preempted by a state statutory scheme that
“vested [a state board] with broad powers relative to the
licensing and regulating of contractors.” 481 P.2d at 118.
The court reasoned that “[t]o hold otherwise would be to
allow the intercity flow of contracting services to be

7
This provision is contained in Part II of the Hawaii Pesticides Law,
which focuses on pesticide sales. However, the provision also addresses
the Board of Agriculture’s authority to, among other things, “establish a
system of control over the . . . use of certain pesticides and devices.” Id.
§ 149A-19(a)(1) (emphasis added). Therefore, the fact that the legislature
did not expressly repeat its goal of uniformity in Part III, which focuses
on pesticide use, is without significance.
 SYNGENTA SEEDS V. CTY. OF KAUAI 21

impaired, thereby severely diluting the value of a uniform
state licensing system” that the legislature sought to realize.
Id. at 119.

Like the law at issue in Application of Anamizu, the
Hawaii Pesticides Law creates a comprehensive statutory
scheme, commits rulemaking and licensing authority to carry
out the scheme to a state agency, and discloses a goal of
uniformity. Moreover, the statute and the Department of
Agriculture’s implementing rules address the specific
subjects addressed by Ordinance 960—pesticide notification
requirements and conditions of permissible use, including
locations of use. In these circumstances, interpreting the
Hawaii Pesticides Law to allow supplemental local
regulations would impermissibly undermine the legislature’s
express goal of uniformity.

We note that the Hawaii Pesticides Law does allow for
local variations in the regulation of pesticides. However,
further evidencing an intent that the State’s control be
exclusive, the legislature directs the Department of
Agriculture to address the need for any local variations. For
example, HRS § 149A-22, gives the Board of Agriculture
“authority to adopt rules . . . to develop and implement state
programs for registration of pesticides for special local
needs.” This provision further distinguishes the Hawaii
Pesticides Law’s preemptive effect from FIFRA’s. FIFRA
and its implementing regulations expressly allow states to
impose additional restrictions or authorize additional uses of
pesticides “to meet special local needs.” 7 U.S.C. § 136v.
Unlike FIFRA, the Hawaii Pesticides Law commits this role
to the Department of Agriculture, while providing counties
with avenues for input into the agency’s regulatory process.
See HRS § 26-16 (establishing the Board of Agriculture and
22 SYNGENTA SEEDS V. CTY. OF KAUAI

specifying that it will include residents of Hawaii, Maui, and
Kauai); HRS § 149A-22 (authorizing the Board of
Agriculture “to adopt rules . . . to develop and implement
state programs for registration of pesticides for special local
needs and issuance of experimental use permits”).

Our conclusion that the legislature intended for the
Hawaii Pesticides Law to be uniform and exclusive of state
control is not undermined by the DOA’s power “to cooperate
with and enter into agreements with any agency of the State,
the federal government, or any other agency” in carrying out
the law. Id. § 149A-35. This provision does not authorize
counties to issue supplemental regulations of pesticides.
Rather, read in context of the larger statutory scheme, which
clearly demonstrates legislative intent to create a uniform
system of pesticide regulation administered by the
Department of Agriculture, we interpret the provision to
authorize the counties to assist in enforcing regulations of
pesticides established by the State.8

Nor do Intervenors’ arguments based on Hawaii’s
litigating position in Mortier and legislative inaction
undermine our interpretation of the Hawaii Pesticides Law’s
preemptive effect. Intervenors argue that an amicus brief
filed by Hawaii in Mortier evidences that the State never
intended to prevent counties from regulating pesticides. See

8
Similarly, Intervenors stretch too far in arguing that the use of the
term “any law” rather than “this chapter” or “state or federal law” in a
provision addressing the suspension and revocation of permits “must be
assumed to include county law.” See HRS § 149A-18 (“Any permit . . .
may be suspended or revoked by the department . . . for violation of . . .
any law or rule pertaining to the sale of pesticides.”). Read in context,
“any law” cannot reasonably be read to show legislative intent to allow for
local pesticide regulation.
 SYNGENTA SEEDS V. CTY. OF KAUAI 23

Mortier, No. 89-1905, 1991 WL 11007857 (Appellate Br.)
(Feb. 28, 1991). The litigating position of the Hawaii
attorney general in Mortier, however, is of little or no
relevance to the preemptive effect of the Hawaii Pesticides
Law. The brief was joined by ten other states and did not
interpret the preemptive effect of Hawaii law. Rather, the
brief argued that FIFRA leaves room for state and local
regulation of pesticides, a point that is not disputed.

Intervenors also argue that Hawaii’s legislative inaction
following Mortier demonstrates the absence of legislative
intent to preempt local regulation of pesticides. Following
the Supreme Court’s decision in Mortier, bills to preempt
local pesticide regulation were introduced in the Hawaii
House and Senate. Intervenors contend that the fact that the
Hawaii legislature did not pass the bills, unlike the
legislatures of many other states, undermines any inference
of preemptive intent from existing law.

In Hurip, the Hawaii Supreme Court relied on post-
enactment legislative history in assessing legislative intent.
873 P.2d at 96–97. However, Hurip relied on the legislative
history of an amendment to a state law, not on post-enactment
legislative inaction. The U.S. Supreme Court and the Hawaii
Supreme Court have found the second type of evidence
generally “lacks persuasive significance” because “several
equally tenable inferences may be drawn from such inaction.”
Cent. Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164, 187 (1994); Richardson, 868
P.2d at 1211 n.25 (finding a “long history of considering, and
rejecting, proposed bills . . . merely begs the question”); Tax
Appeal of Dir. of Taxation v. Med. Underwriters of Cal., 166
P.3d 353, 365 n.11 (Haw. 2007) (“[L]egislative inaction is
not a cogent expression of legislative intent.”). No
24 SYNGENTA SEEDS V. CTY. OF KAUAI

circumstances endow the Hawaii legislature’s inaction with
significance here.

In sum, we find that the Hawaii Pesticides Law
comprehensively regulates pesticides and creates a clear
inference of legislative intent to preempt local regulations of
pesticides. Accordingly, applying Hawaii’s comprehensive
statutory scheme test, we hold that Ordinance 960’s pesticide
provisions are impliedly preempted by Hawaii law and
beyond the County’s power under HRS § 46-1.5(13).

C. The district court did not abuse its discretion in
denying Defendants’ motion to certify the preemption
issues to the Hawaii Supreme Court.

Defendants argue that the district court erred in declining
to certify the state implied preemption questions presented to
the Hawaii Supreme Court. Alternatively, Defendants ask us
to certify the implied preemption questions.

We find that the district court did not abuse its discretion
in denying Defendants’ motion to certify. We similarly find
that while the Hawaii Supreme Court has not applied its
preemption test to the specific laws at issue, certification is
unnecessary because the State’s test for implied state
preemption is “rather well-defined.” Puyallup Indian Tribe
v. Port of Tacoma, 717 F.2d 1251, 1263 n.14 (9th Cir. 1983);
see also Pai 'Ohana v. United States, 875 F. Supp. 680, 700
(D. Haw. 1995), aff’d sub nom. 'Ohana v. United States, 76
F.3d 280 (9th Cir. 1996) (“[W]here there is sufficient state
law to enable this court to make an informed decision on [the]
issues certification is inappropriate.”) (internal quotation
marks omitted).
 SYNGENTA SEEDS V. CTY. OF KAUAI 25

III.

We affirm the district court’s conclusion that the Hawaii
Pesticides Law impliedly preempts Ordinance 960’s pesticide
provisions. We affirm the district court’s conclusion that
Hawaii law impliedly preempts Ordinance 960’s GE crop
reporting provision in a concurrently filed memorandum
disposition. We also affirm the district court’s denial of
Defendants’ motion to certify.

AFFIRMED.