Federal Court Overturns Maui Ban on GMO Cultivation

On June 30, 2015, the United States District Court for the District of Hawaii struck down a Maui County Ordinance that placed a moratorium on the cultivation of GMO crops within the county.

The ordinance was originally enacted in November of 2014 making it unlawful for “any person or entity to knowingly propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui…” According the text of the ordinance, the ordinance was meant to protect resources from transgenic contamination, protect the economic integrity of organic and non-GMO markets, protect against “hazardous aspects” of GMO production, preserve the right to reject GMO operations for “health-related, moral, or other concerns”, and to preserve county resources while promoting cultural heritage of the area. The moratorium was meant to remain in effect until Environmental and Public Health Impacts Studies had been conducted on the practices or crops in question.  

The ordinance was challenged as being preempted by federal and state laws, and going beyond the county’s authority. Concerning federal preemption, the court found that the ordinance was expressly preempted by the Plant Protection Act (PPA) by attempting to ban all GMO crops, even those covered by the PPA. According to the court, the ordinance is also implicitly preempted by frustrating the purpose of the PPA via interference with the establishment of a national standard for movement in interstate commerce.

Concerning state preemption, the court found that the ordinance interfered with a preexisting statutory scheme of regulations within the state. Further, the court found that the ordinance is beyond the county’s authority, as violations of the ordinance carry a financial penalty greater than the amount allowed in the adopted Maui charter.

This case is the third of its kind within the state of Hawaii, with other cases occurring with similar ordinances in Hawaii and Kauai counties, with both cases being resolved on preemption claims.

Written by Tyler R. Etter- Research Assistant
July 6, 2015

Commonwealth Court Grants Attorney General Partial Summary Judgment in ACRE Challenge

On July 17, 2012, the Commonwealth Court of Pennsylvania granted the State’s Attorney General partial summary judgment on two ACRE challenges to a Locust Township ordinance.  The Court found:  (1) that small farmers, currently exempt under state law, were improperly required to submit and implement emergency and response nutrient management plans, and (2) local water requirements were in excess of state law.  The Court denied summary judgment as to the Attorney General’s remaining claims and counts. 

To read the Courts opinion in its entirety, pleas click the link below:

Commonwealth v. Locust Township

Written by M. Sean High, Research Assistant
Penn State Law, Agricultural Law Center

Commonwealth Court Denies Packer Township Summary Judgment in ACRE Challenge

On July 12, 2012, the Commonwealth Court of Pennsylvania rejected a motion for summary judgment brought by Packer Township in response to an ACRE challenge filed by the state Attorney General.  The Attorney General claimed that a Packer Township sludge ordinance was in violation of ACRE because it interfered with normal agricultural operations, and was unauthorized and preempted by state law.  Packer Township responded to the Attorney General with a motion for summary judgment asserting: (1) ACRE was unconstitutional and violated the rights of local residents to self-government; and (2) the Attorney general was prevented from bringing an action because the challenge to the local ordinance did not involve an affected complainant.  In the alternative, the Township’s motion requested partial summary judgment to have the ordinance’s ban on corporate sludging and community bill of rights removed from the Attorney General’s challenge.  Ultimately, the Court denied the Township’s motion for summary judgment or partial summary judgment. 

To read the full Commonwealth Court opinion, please click the link below:

Commonwealth v. Packer Township

Written by M. Sean High, Research Assistant

Penn State Law, Agricultural Law Center

Commonwealth Court Rejects ACRE and Right to Farm Challenge to Township Ordinance

On June 27, 2012, in an unreported opinion, the Pennsylvania Commonwealth Court rejected post-trial motions and upheld a ruling that a Montgomery County municipality’s ordinance did not violate the Agriculture, Communities and Rural Environment Act (ACRE) and the Right to Farm Law (RFL). Boswell v. Skippack Twp., No. 389 M.D. 2006. ACRE provides farmers with a process to challenge local ordinances that are believed to be unauthorized due to existing state law, while RFL protects normal agricultural operations from nuisance lawsuits and ordinances. At trial, tree farmers James and Paula Boswell unsuccessfully challenged a Skippack Township ordinance precluding their use of a loud, high-pitched sound device designed to protect crops from deer damage. The Boswells claimed the decision was incorrect because evidence presented at trial proved their use of the sound device was a normal agricultural practice protected under ACRE and RFL.  The Commonwealth Court found no identifiable error in the original determination that use of the sound device was not a normal agricultural practice.  For more information on these agricultural statutes, please visit the Agricultural Law Center's ACRE Resource Area and Pennsylvania Right to Farm Act Resource Area.

Written by M. Sean High, Research Assistant

Penn State Law, Agricultural Law Center