Jim Aana; et al. vs. Pioneer Hi-Bred International, Inc.

Filing 825

ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT TO DISMISS DEFENDANT DUPONT PIONEERS THIRD AFFIRMATIVE DEFENSE BASED ON THE HAWAII RIGHT TO FARM ACT, HAWAII REVISED STATUTES, CHAPTER 165 re 745 Motion for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JIM AANA, et al., on behalf
of themselves and all others
similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., a DuPont
Business and Iowa
Corporation, GAY & ROBINSON,
INC., a Hawaii corporation;
ROBINSON FAMILY PARTNERS, a
general partnership
registered in Hawaii; and DOE
DEFENDANTS 1-10,
Defendants.
_____________________________
JEFFREY CASEY, et al., on
behalf themselves and all
others similarly situated,
Plaintiffs,
vs.
PIONEER HI-BRED
INTERNATIONAL, INC., et al.,
Defendants.
_____________________________

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CIVIL NO. 12-00231 LEK-BMK
CIVIL NO. 12-00665 LEK-BMK

ORDER DENYING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT TO DISMISS DEFENDANT
DUPONT PIONEER’S THIRD AFFIRMATIVE DEFENSE BASED ON THE
HAWAII RIGHT TO FARM ACT, HAWAII REVISED STATUTES, CHAPTER 165
On May 23, 2014, Plaintiffs Jim Aana, et al., on behalf
of themselves and all others similarly situated (collectively,

“Plaintiffs”),1 filed their Motion for Partial Summary Judgment
to Dismiss Defendant DuPont Pioneer’s Third Affirmative Defense
Based on the Hawaii Right to Farm Act, Hawaii Revised Statutes,
Chapter 165 (“Motion”).

[Dkt. no. 745.]

Defendants Pioneer Hi-

Bred International, Inc. (“Pioneer”), Gay & Robinson, Inc., and
Robinson Family Partners2 (all collectively “Defendants”) filed
their memorandum in opposition on August 12, 2014, and Plaintiffs
filed their reply on August 19, 2014.

[Dkt. nos. 789, 795.]

This matter came on for hearing on September 2, 2014.3

After

careful consideration of the Motion, supporting and opposing
memoranda, and the arguments of counsel, Plaintiffs’ Motion is
HEREBY DENIED for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background of this
case is set forth in this Court’s: 1) August 9, 2013 Order

1

Insofar as the two cases have been consolidated, the Court
will refer to the plaintiffs in both cases collectively as
“Plaintiffs.” The defendants are the same in both cases.
2

The Court will refer to Gay & Robinson, Inc. and Robinson
Family Partners collectively as “the Robinson Defendants.”
3

At the hearing, the Court also heard arguments regarding
Defendants’ Motion for Partial Summary Judgment as to Counts I,
II, IV, V, and VI of the Third Amended Complaint (“Defendants’
Motion”), filed April 29, 2014. [Dkt. no. 718.] On
September 3, 2014, however, this Court issued its Order Granting
in Part and Denying in Part Plaintiffs’ Request for Fed. R. Civ.
P. 56(d) Continuance, which allowed the parties to file
supplemental memoranda addressing Defendants’ Motion. [Dkt. no.
808.] This Court will issue a separate order addressing
Defendants’ Motion.
2

Granting in Part and Denying in Part Defendants Gay & Robinson,
Inc. and Robinson Family Partners’ Motion to Dismiss Plaintiffs’
Second Amended Complaint Under Fed. R. Civ. P. 12(b)(6); and
Granting in Part and Denying in Part Defendants Gay & Robinson,
Inc., Robinson Family Partners, and Pioneer Hi-Bred
International, Inc.’s Motion to Dismiss Plaintiffs’ Second
Amended Complaint (“8/9/13 Order”); and 2) February 27, 2014
Order Granting in Part and Denying in Part Defendants’ Motion to
Dismiss Third Amended Complaint (Rule 12(b)(6)) (“2/27/14
Order”).

[Dkt. nos. 224, 608.4]
The crux of Plaintiffs’ Third Amended Complaint

(Property Related Claims) (“Third Amended Complaint,” [filed
9/6/13 (dkt. no. 331),] is that Plaintiffs have allegedly
suffered various forms of property damage as a result of
Pioneer’s commercial farming operation on property it leases from
the Robinson Defendants (“the GMO Test Fields”).

One of the

affirmative defenses that Defendants have asserted is that the
Hawaii Right to Farm Act, Haw. Rev. Stat. Chapter 165 (“the Farm
Act”), “bars or precludes Plaintiffs’ claims.”

[Pioneer’s Answer

to Third Amended Complaint [Dkt. 331], filed 3/21/14 (dkt. no.
679), at pg. 23; Robinson Defendants’ Answer to Third Amended
Complaint [Dkt. No. 331], filed 3/21/14 (dkt. no. 680), at pg.

4

The 8/9/13 Order is available at 965 F. Supp. 2d 1157, and
the 2/27/14 Order is available at 2014 WL 806224.
3

25.]
In the instant Motion, Plaintiffs seek summary judgment
as to Defendants affirmative defense under the Farm Act.
Plaintiffs assert that the plain language of the Farm Act, the
act’s legislative history, and the case law applying similar laws
make it clear that the Farm Act applies to “residential
encroachment upon existing agricultural operations,” and it does
not “grant immunity for new agricultural projects that bring a
nuisance to a pre-existing community.”
at 1.]

[Mem. in Supp. of Motion

Plaintiffs argue that Defendants cannot assert a defense

based on the Farm Act because the Waimea residential community
predated both Pioneer’s farming of the GMO Test Fields and the
Robinson Defendants’ historic sugar cane farming on the property.
[Id.]
DISCUSSION
Defendants’ Farm Act defense relies upon Haw. Rev.
Stat. § 165-4, which provides that:
No court, official, public servant, or public
employee shall declare any farming operation a
nuisance for any reason if the farming operation
has been conducted in a manner consistent with
generally accepted agricultural and management
practices. There shall be a rebuttable
presumption that a farming operation does not
constitute a nuisance.
The key terms are defined as follows:
“Farming operation” means a commercial
agricultural . . . facility or pursuit conducted,
in whole or in part, including the care and
4

production of livestock and livestock products,
poultry and poultry products, apiary products, and
plant and animal production for nonfood uses; the
planting, cultivating, harvesting, and processing
of crops; and the farming or ranching of any plant
or animal species in a controlled salt, brackish,
or freshwater environment. “Farming operation”
includes but shall not be limited to:
(1) Agricultural-based commercial operations
as described in section [205-2(d)(15)];
(2) Noises, odors, dust, and fumes emanating
from a commercial agricultural or an
aquacultural facility or pursuit;
(3) Operation of machinery and irrigation
pumps;
(4) Ground and aerial seeding and spraying;
(5) The application of chemical fertilizers,
conditioners, insecticides, pesticides, and
herbicides; and
(6) The employment and use of labor.
. . . .
“Nuisance” means any interference with reasonable
use and enjoyment of land, including but not
limited to smoke, odors, dust, noise, or
vibration; provided that nothing in this chapter
shall in any way restrict or impede the authority
of the State to protect the public health, safety,
and welfare. “Nuisance” as used in this chapter,
includes all claims that meet the requirements of
this definition regardless of whether a
complainant designates such claims as brought in
nuisance, negligence, trespass, or any other area
of law or equity; provided that nuisance as used
in this chapter does not include an alleged
nuisance that involves water pollution or
flooding.
Haw. Rev. Stat. § 165-2 (emphases added).

5

Plaintiffs argue that all fifty states have enacted
some form of right to farm legislation, and “[t]hese laws, as the
Supreme Courts of Idaho, Indiana, Vermont, and others have noted,
are essentially a codification of the common law defense of
‘coming to a nuisance.’”
cases).]

[Mem. in Opp. at 6 & n.15 (citing

Plaintiffs argue that such laws only apply to pre-

existing farming operations; those laws do not apply to farms
that come to an existing community, or to existing farms that
change their operation to a completely different method of
production.

Plaintiffs contend that the Farm Act does not apply

to the GMO Test Fields because the Waimea community was in
existence long before either Pioneer’s operation or the Robinson
Defendants’ previous sugar cane operation.

According to

Plaintiffs, the Farm Act’s statement of purpose in Haw. Rev.
Stat. § 165-1 confirms this interpretation.
Section 165-1, titled “Findings and purpose,” states:
The legislature finds that when nonagricultural
land uses extend into agricultural areas, farming
operations often become the subject of nuisance
lawsuits that may result in the premature removal
of lands from agricultural use and may discourage
future investments in agriculture. The
legislature also finds that under the Hawaii State
Planning Act, it is a declared policy of this
State to “foster attitudes and activities
conducive to maintaining agriculture as a major
sector of Hawaii’s economy.” Accordingly, it is
the purpose of this chapter to reduce the loss to
the State of its agricultural resources by
limiting the circumstances under which farming
operations may be deemed to be a nuisance.

6

(Emphasis added.)

Further, the Farm Act’s “Declaration of public

purpose” states: “The preservation and promotion of farming is
declared to be in the public purpose and deserving of public
support.”

Haw. Rev. Stat. § 165-3.

Plaintiffs emphasize that

the Farm Act was enacted in 1982, and neither § 165-1 nor § 165-3
has ever been amended.5

[Mem. in Supp. of Motion at 17.]

To the extent that the instant Motion asks this Court
to interpret the provisions of the Farm Act, this Court will
apply the rules of statutory interpretation that the Hawai`i
Supreme Court follows.

2/27/14 Order, 2014 WL 806224, at *13

(noting that this Court has diversity jurisdiction over the
instant case and “is bound by the decisions of the highest state
court” (some citations omitted) (quoting Albano v. Shea Homes
Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011))).
First, the fundamental starting point for
statutory interpretation is the language of
the statute itself. Second, where the
statutory language is plain and unambiguous,
our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the
task of statutory construction is our
foremost obligation to ascertain and give
effect to the intention of the legislature,
which is to be obtained primarily from the
language contained in the statute itself.
Fourth, when there is doubt, doubleness of
meaning, or indistinctiveness or uncertainty
of an expression used in a statute, an
ambiguity exists.

5

Section 165-1 was amended in 1986, but the amendments were
not substantive. Compare Haw. Rev. Stat. § 165-1 (Supp. 1984)
with Haw. Rev. Stat. § 165-1 (Supp. 1987).
7

Peterson v. Hawaii Elec. Light Co., Inc., 85
Hawai`i 322, 327-28, 944 P.2d 1265, 1270-71
(1997), superseded on other grounds by HRS
§ 269-15.5 (Supp. 1999) (block quotation format,
brackets, citations, and quotation marks omitted).
In the event of ambiguity in a statute, “the
meaning of the ambiguous words may be sought by
examining the context, with which the ambiguous
words, phrases, and sentences may be compared, in
order to ascertain their true meaning.” Id.
(quoting HRS § 1-15(1) (1993)). Moreover, the
courts may resort to extrinsic aids in determining
legislative intent, such as legislative history,
or the reason and spirit of the law. See HRS
§ 1-15(2) (1993).
State v. Bayly, 118 Hawai`i 1, 6-7, 185 P.3d 186, 191-92 (2008).
Nothing in the plain language of either § 165-4 or
§ 165-2 limit the Farm Act’s protections to farming operations
that existed in the affected area before the persons or entities
making the nuisance complaint.

Section 165-4 expressly applies

to “any farming operation” that “has been conducted in a manner
consistent with generally accepted agricultural and management
practices” (“GAMP”).

(Emphasis added.)

Plaintiffs’ position is that §§ 165-1 and 165-3
indicate that the impetus of the Farm Act was the “coming to the
nuisance doctrine,” and therefore that limitation must be read
into all portions of the Farm Act.

First, this Court disagrees

with Plaintiffs’ interpretation of §§ 165-1 and 165-3.

Although

the first sentence of § 165-1 observes that nuisance actions
often result “when nonagricultural land uses extend into
agricultural areas,” the second sentence observes that it is part
8

of State policy to preserve “agriculture as a major sector of
Hawaii’s economy.”

In light of those observations, the third

sentence of § 165-1 states that the purpose of Chapter 165 “to
reduce the loss to the State of its agricultural resources by
limiting the circumstances under which farming operations may be
deemed to be a nuisance.”

There is nothing in either the third

sentence of § 165-1 or § 165-3 that supports limiting the
protections of the Farm Act to farming operations that existed
before the development of nearby non-agricultural land uses.
Interpreting the Farm Act in the manner that Plaintiffs suggest
would violate the legislature’s admonition that Chapter 165 “is
remedial in nature and shall be liberally construed to effectuate
its purposes.”

Haw. Rev. Stat. § 165-6.6

Further, an examination of the prior versions § 165-4
precludes the limited reading of the Farm Act that Plaintiffs
advocate in the Motion.

The current version of § 165-4 is

drastically different from the original version, which was
adopted in 1982:
No court, official, public servant, or public
employee shall declare any farming operation a
nuisance for any reason if the following have been
proven:

6

In 1993, the legislature adopted § 165-6 and Haw. Rev.
Stat. § 165-5. 1993 Haw. Sess. Laws Act 162, § 1 at 246.
Section 165-5 allows a court to award attorneys’ fees and costs,
pursuant to Haw. Rev. Stat. § 607-14.5, if it finds that an
action which alleges that a farming operation is a nuisance is
frivolous.
9

(1)

That the farming operation was not in
violation of this section at its
established date of operation;

(2)

That the stated or implied basis for the
nuisance complaint is that conditions
have changed in the vicinity of the
farming operations since its established
date of operation;

(3)

That the farm operation was lawfully in
operation for at least one year prior to
the nuisance complaint;

(4)

That the alleged nuisance did not result
from the negligent conduct or improper
operation of the farming operation; or
from any aspect of said operation which
is determined to be injurious to public
health or safety; and

(5)

That the alleged nuisance does not
involve water pollution or flooding.

Haw. Rev. Stat. § 165-4 (Supp. 1984).

The concept of the

“established date of operation” (which no longer exists in the
Farm Act) was defined as:
the date on which the farming operation commenced
operation. If the physical facilities of the
farming operation are subsequently expanded, the
established date of operation for each expansion
is deemed to be a separate and independent
established date of operation established as of
the date of commencement of the expanded
operation, and the commencement of the expanded
operation shall not divest the farming operation
of a previously established date of operation.
Haw. Rev. Stat. § 165-2(3) (Supp. 1984).
Thus, the original version of § 165-4 implemented the
“coming to the nuisance” principle that Plaintiffs now advocate.
In 1986, however, the legislature amended § 165-4 to read, in
10

pertinent part:
(a)

No court, official, public servant, or public
employee shall declare any farming operation
a nuisance for any reason if all of the
following have been proven:
(1)

That during the twelve-month period
preceding the filing of the nuisance
complaint with a court or other
adjudicative public body, the farming
operation complied with statutes,
ordinances, regulations, or rules
relevant to the nuisance complaint; and

(2)

That the farming operation has used
reasonable care in conducting its
operation.

Haw. Rev. Stat. § 165-4(a) (Supp. 1987).

Based on its plain

language, the post-1986 version of § 165-4 clearly departs from
the “coming to the nuisance” doctrine.

The post-1986 version

abandoned the “established date of operation” analysis in favor
of a twelve-month compliance analysis.
the current version of § 165-4 in 2001.
26, § 2 at 48-49.

The legislature adopted
2001 Haw. Sess. Laws Act

The current version of § 165-4 has even more

expansive protections; it applies to any farming operation that
“has been conducted in a manner consistent with” GAMP.
Having reviewed the plain language of the current
version of § 165-4, in comparison to the plain language of the
prior versions, this Court CONCLUDES that the statute
unambiguously applies to all farming operations which comply with
GAMP, regardless of when the farm began its operations.

11

This Court therefore rejects Plaintiffs’ argument that
the protections of the Farm Act only apply to farming operations
that pre-existed the nearby non-agricultural land user who
alleges that the farming operation is causing a nuisance.
Although Plaintiffs argue that committee reports regarding the
adoption of, and amendments to, the Farm Act support their
position, [Mem. in Supp. of Motion at 17-20,] this Court has
concluded that the plain language of § 165-4 is unambiguous.
Thus, this Court’s sole duty is to give effect to the plain
meaning of the statute.
191.

See Bayly, 118 Hawai`i at 6, 185 P.3d at

Courts only “resort to extrinsic aids in determining

legislative intent, such as legislative history, or the reason
and spirit of the law” when the statute is ambiguous.

See id. at

7, 185 P.3d at 192 (citing HRS § 1-15(2) (1993)).
The parties dispute various factual representations
that Plaintiffs made regarding historic nature of the Waimea
community.

However, these disputes are not material because, in

light of this Court’s rulings regarding the Farm Act, these
disputes will not affect the outcome of the case.

See Miller v.

Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006) (“A
fact is material if it could affect the outcome of the suit under
the governing substantive law.”).

This Court therefore finds

that there are no genuine disputes of material fact, and it
concludes that Plaintiffs have failed to establish that they are

12

entitled to judgment as a matter of law.

See Fed. R. Civ. P.

56(a) (stating that a movant is entitled to summary judgment “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law”).
This Court emphasizes that, at this time, it makes no
findings or conclusions regarding the merits of Defendants’
defense under the Farm Act.

In order for the Farm Act to apply,

Defendants must prove, inter alia, that “the farming operation
has been conducted in a manner consistent with” GAMP.
4.

See § 165-

That issue was not before this Court in the instant Motion.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for

Partial Summary Judgment to Dismiss Defendant DuPont Pioneer’s
Third Affirmative Defense Based on the Hawaii Right to Farm Act,
Hawaii Revised Statutes, Chapter 165, filed May 23, 2014, is
HEREBY DENIED.
IT IS SO ORDERED.

13

DATED AT HONOLULU, HAWAII, September 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JIM AANA, ET AL. VS. PIONEER HI-BRED INTERNATIONAL, INC., ET AL;
CIVIL 12-00231 LEK-BMK; JEFFREY CASEY, ET AL. VS. PIONEER HI-BRED
INTERNATIONAL, INC., ET AL; CIVIL 12-00655 LEK-BMK; ORDER DENYING
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT TO DISMISS
DEFENDANT DUPONT PIONEER’S THIRD AFFIRMATIVE DEFENSE BASED ON THE
HAWAII RIGHT TO FARM ACT, HAWAII REVISED STATUTES, CHAPTER 165

14