Robert Ito Farm, Inc. v. County of Maui

Filing 63

ORDER (1) GRANTING ALIKA ATAY, LORRIN PANG, MARK SHEEHAN, BONNIE MARSH, LEI'OHU RYDER, AND SHAKA MOVEMENT'S MOTION TO INTERVENE AND (2) DENYING MOMS ON A MISSION HUI, MOLOKA'I MAHI'AI, GERRY ROSS AND CENTER FOR FOOD SAFETY'S MOTION FOR LEAVE TO INTERVENE re 37 ; 40 - Signed by Judge BARRY M. KURREN on 12/15/2014. (emt, )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

ROBERT ITO FARM, INC., ET AL. )
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF MAUI,
)
)
Defendant.
)
)
)
)
______________________________ )

CIV. NO. 14-00511 BMK
ORDER (1) GRANTING ALIKA
ATAY, LORRIN PANG, MARK
SHEEHAN, BONNIE MARSH,
LEI`OHU RYDER, AND SHAKA
MOVEMENT’S MOTION TO
INTERVENE AND (2) DENYING
MOMS ON A MISSION HUI,
MOLOKA`I MAHI`AI, GERRY
ROSS, AND CENTER FOR FOOD
SAFETY’S MOTION FOR LEAVE
TO INTERVENE

ORDER (1) GRANTING ALIKA ATAY, LORRIN PANG, MARK SHEEHAN,
BONNIE MARSH, LEI`OHU RYDER, AND SHAKA MOVEMENT’S
MOTION TO INTERVENE AND (2) DENYING MOMS ON A MISSION HUI,
MOLOKA`I MAHI`AI, GERRY ROSS, AND CENTER FOR FOOD SAFETY’S
MOTION FOR LEAVE TO INTERVENE
Before the Court are two Motions to Intervene: (1) Alika Atay, Lorrin
Pang, Mark Sheehan, Bonnie Marsh, Lei`ohu Ryder, and Shaka Movement’s
(collectively, “Shaka”) Motion to Intervene (Doc. 37) and (2) Moms on a Mission
(MOM) Hui, Moloka`i Mahi`ai, Gerry Ross, and Center for Food Safety’s
(collectively, “CFS”) Motion for Leave to Intervene (Doc. 40).1 The Proposed
Intervenors seek intervention as of right under Federal Rules of Civil Procedure
(“FRCP”) Rule 24(a)(2), or alternatively, permissive intervention under FRCP Rule
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Collectively, Shaka and CFS will be referred to as “Proposed Intervenors.”

24(b)(2). The Court heard these Motions on December 12, 2014. After careful
consideration of the Motions, the supporting and opposing memoranda, and the
arguments of counsel, the Court GRANTS Shaka’s Motion to Intervene (Doc. 37)
and DENIES CFS’s Motion for Leave to Intervene (Doc. 40).
FACTUAL BACKGROUND
Plaintiffs2 bring this action to enjoin and invalidate a County of Maui
Ordinance regarding genetically engineered crops. The Ordinance was approved
by ballot initiative on November 4, 2014.
Under Article 11 of the Charter of Maui, voters have “initiative power,”
which is the power to propose ordinances to the County Council. Maui County
Charter (“MCC”) § 11-1(1). Any five qualified voters may commence initiative
proceedings by filing an affidavit with the County clerk, and those five voters
constitute the “petitioners’ committee.” MCC § 11-2(1). The committee is issued
petition blanks, which “must be signed by not less than twenty percent (20%) of the
total number of voters who cast ballots in the last mayoral general election.” MCC
§ 11-3(2).
All papers forming the initiative petition must be filed with the County

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Plaintiffs are Robert Ito Farm, Inc.; Hawaii Farm Bureau Federation, Maui County; Moloka`i
Chamber of Commerce; Monsanto Company; Agrigenetics, Inc.; Concerned Citizens of Moloka`i
and Maui; Friendly Isle Auto Parts & Supplies, Inc.; New Horizon Enterprises, Inc. dba Makoa
Trucking and Services; and Hikiola Cooperative.
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clerk within 180 days after the committee files their affidavit. MCC § 11-4(1).
Upon a determination by the County clerk that the petition is “sufficient,” the
County Council “shall promptly consider the proposed ordinance.” MCC
§§ 11-4(1), 11-6(1). If the Council fails to enact a proposed ordinance within sixty
days after the petition was determined to be sufficient, the proposed ordinance shall
be submitted “to the voters of the county at the next general election.” MCC
§ 11-6(1). If a majority of the voters vote in its favor, the ordinance “shall be
considered enacted upon certification of the election results.” MCC § 11-7.
With respect to the Ordinance in this case, Movants Alika Atay, Lorrin
Pang, Mark Sheehan, Bonnie Marsh, and Lei`ohu Ryder formed the petitioners’
committee. (Savitt Decl’n ¶ 5.) On April 7, 2014, the committee submitted the
proposed Ordinance, entitled “A Bill Placing a Moratorium on the Cultivation of
Genetically Engineered Organisms,” to the County clerk. (Id. ¶¶ 2, 6.) On June 6,
the County clerk determined that the proposed Ordinance was sufficient. (Id. ¶ 8.)
After hearing public testimony on the Ordinance, the County Council’s Policy and
Intergovernmental Affairs Committee determined it would take no action on the
Ordinance. (Id. ¶¶ 9, 12.) The County clerk then submitted the Ordinance to the
voters at the general election held on November 4, 2014, where the majority of
voters voted in favor of the Ordinance. (Id. ¶ 12; Shaka Motion at 7.)

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On November 12, 2014, the five individuals comprising the petitioners’
committee, along with Shaka Movement, filed a Complaint against the County,
Monsanto Company, and Dow Agrosciences LLC in state court. (Shaka Motion
Ex. C.) They sought declaratory relief that the “County is obligated to proceed
forward to properly and timely implement the GMO Bill” and that “Plaintiffs shall
be permitted to assist and participate in the County’s implementation of the GMO
bill, and the County shall consult the Plaintiffs with respect to the GMO Bill’s
implementation.” (Shaka Motion Ex. C at 10.)
The next day, on November 13, 2014, Plaintiffs filed the Complaint in
this case against the County of Maui. (Complaint.) Plaintiffs assert that the
Ordinance “violates federal, state and local law” and pray for a declaration that the
Ordinance is invalid and an injunction enjoining the County from enforcing the
Ordinance. (Complaint ¶ 3 & Prayer for Relief.)
On November 17, 2014, Plaintiffs and the County stipulated that the
County be “enjoined from publishing or certifying the Ordinance, enacting,
effecting, implementing, executing, applying, enforcing, or otherwise acting upon
the Ordinance, and the Ordinance shall not be published, certified as an Ordinance,
enacted, effected, implemented, executed, applied, enforced, or otherwise acted
upon until March 31, 2015.” (Doc. 26 at 4.)

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On November 21, 2014, the present Motions to Intervene were filed.
(Docs. 37 at 40.) The Shaka Intervenors consist of Shaka Movement and the five
individuals who constituted the petitioners’ committee and actively pursued their
initiative power under Article 11 of the Maui County Charter. The five individuals
reside and work where genetically modified organism (“GMO”) operations and
practices take place. (Savitt Decl’n ¶ 5.) They, along with Shaka Movement’s
board of directors, maintained a strong presence during public hearings on the
Ordinance. (Id. ¶ 10.) They also reached out to the community through events
featuring various speakers, two marches, door-to-door campaigning, radio and
television advertising, educational mailings, the use of social media networks, and
volunteers who raised awareness and support for the Ordinance. (Id. ¶ 14.)
The CFS Intervenors include Gerry Ross, an organic farmer who faces
the risk of pesticide damage and transgenic contamination of his organic crops.
(Doc. 40 at 11; Ross Decl’n ¶¶ 5-6.) Moloka`i Mahi`ai is a group of Moloka`i
farmers and food producers whose property interests and livelihoods are affected by
Plaintiffs’ GMO crop operations. (Doc. 40 at 11; Buchanan Decl’n ¶¶ 3-19.) The
MOM Hui consists of a group of Moloka`i mothers “who advocate for protecting the
health, safety, and well-being of all children.” (Doc. 11-12; Ritte Decl’n ¶¶ 5-6.)
The Center for Food Safety is a public interest group dedicated to addressing the

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impacts of industrial agriculture and assists state and local governments in
addressing the impacts of GMO crops. (Doc. 40 at 12-13; Lukens Decl’n ¶¶ 4-12.)
The Center for Food Safety also provided assistance to the voter initiative, convened
a coalition of farmers, residents, and small businesses, and launched a website to
educate voters about the Ordinance. (Doc. 40 at 14-15; Lukens Decl’n ¶¶ 19-22.)
DISCUSSION
I.

INTERVENTION AS OF RIGHT
FRCP Rule 24(a)(2) provides in relevant part that,
On timely motion, the court must permit anyone to
intervene who. . . claims an interest relating to the property
or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that
interest.

Rule 24 is to be liberally construed in favor of the party seeking intervention,
Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003), because “a liberal policy
in favor of intervention serves both efficient resolution of issues and broadened
access to the courts.” Wilderness Soc’y. v. U.S. Forest Service, 630 F.3d 1173,
1179 (9th Cir. 2011).
When analyzing a motion to intervene as of right under FRCP Rule
24(a)(2), the Court applies a four-part test:

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(1) the motion must be timely; (2) the applicant must
claim a “significantly protectable” interest relating to the
property or transaction which is the subject of the action;
(3) the applicant must be so situated that the disposition of
the action may as a practical matter impair or impede its
ability to protect that interest; and (4) the applicant’s
interest must be inadequately represented by the parties to
the action.
Wilderness Soc’y, 630 F.3d at 1177. In applying this test, “courts are to take all
well-pleaded, nonconclusory allegations in the motion to intervene, the proposed
complaint or answer in intervention, and declarations supporting the motion as true
absent sham, frivolity or other objections.” Sw. Ctr. for Biological Diversity v.
Berg, 268 F.3d 810, 820 (9th Cir. 2001). Because Plaintiffs do not contest the
timeliness of the motions to intervene, the Court addresses the remaining three
factors.
A.

Significantly Protectable Interests

An applicant seeking intervention has a “significantly protectable
interest” in an action if:
(1) it asserts an interest that is protected under some law,
and (2) there is a “relationship” between its legally
protected interest and the plaintiff’s claims. The
relationship requirement is met if the resolution of the
plaintiff’s claims actually will affect the applicant. The
“interest” test is not a clear-cut or bright-line rule, because
no specific legal or equitable interest need be established.
Instead, the “interest” test directs courts to make a
practical, threshold inquiry, and is primarily a practical
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guide to disposing of lawsuits by involving as many
apparently concerned persons as is compatible with
efficiency and due process.
In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 984-85 (9th
Cir. 2008) (quoting S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002)).
The Shaka Intervenors assert they have significantly protectable
interests because they were the original proponents and drafters of the Ordinance
and actively participated in the legislative and political process relating to the
Ordinance. (Doc. 37 at 12; Savitt Decl’n ¶ 15.) They also reached out to Maui
residents by hosting events featuring various speakers, two marches, door-to-door
campaigning, radio and television advertising, educational mailings, and the use of
social media. (Doc. 37 at 13; Savitt Decl’n ¶ 14.) Additionally, the Shaka
Intervenors are plaintiffs in a related previously filed state court action, in which
they seek a declaration that the Ordinance is valid and request permission to assist,
participate, and consult with the County in implementing the Ordinance. (Doc. 37
at 13; Ex. C.) That lawsuit names the County of Maui and Monsanto Company
(one of the Plaintiffs in this case) as Defendants. The CFS Intervenors assert their
health and property interests are being impaired by Plaintiffs’ GMO crop operations.
(Doc. 40 at 11.)
The Court finds that the Shaka and CFS Intervenors each assert

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significantly protectable interests. Nw. Forest Resource Council v. Glickman, 82
F.3d 825, 837-38 (9th Cir. 1996) (noting that public interest groups “directly
involved in the enactment of the law . . . out of which the litigation arose” are
allowed to intervene); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1397 (9th
Cir. 1995) (a “public interest group is entitled as a matter of right to intervene in an
action challenging the legality of a measure it has supported”). Additionally, where
proposed intervenors assert an interest in environmental actions affecting their
members, courts have generally found a significantly protectable interest to exist for
purposes of intervention as of right. See e.g., Am. Farm Bureau Fed’n v. EPA, 278
F.R.D. 98, 106 (M.D. Pa. 2011) (holding environmental group whose members used
the waters of Chesapeake Bay for aesthetic and recreational purposes had a
significantly protectable interest in litigation challenging EPA Clean Water Act
restrictions); Cal. Dump Truck Owners Ass’n v. Nichols, 275 F.R.D. 303, 306-07
(E.D. Cal. 2011) (holding that environmental group whose members benefited from
improved air quality under regulations restricting truck emissions had sufficient
interest in litigation attacking those regulations for purposes of intervention).
B.

Disposition of the Action and Impairment of Interests

The analysis for intervention as of right also requires the Court to
consider whether the applicant is “so situated that the disposition of the action may

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as a practical matter impair or impede its ability to protect that interest.”
Wilderness Soc’y, 630 F.3d at 1177. The Court’s analysis focuses on the “future
effect pending litigation will have” on the intervenors’ interests. Parker v. Nelson,
160 F.R.D. 118, 122 (D. Neb. 1994). Notably, “the question of impairment is not
separate from the existence of an interest,” Natural Res. Defense Council, Inc., v.
U.S. Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978), and
“generally, after determining that the applicant has a protectable interest, courts have
‘little difficulty concluding’ that the disposition of the case may affect such interest.”
Jackson v. Abercrombie, 282 F.R.D. 507, 517 (D. Haw. 2012) (citing Lockyer v.
United States, 450 F.3d 436, 442 (9th Cir. 2006).
Although Plaintiffs contest whether the Shaka and CFS Intervenors
have significantly protectable interests, they do not challenge whether the outcome
of this action may impair their interests. Having found Proposed Intervenors do
have significantly protectable interests in the subject of this action, it follows that the
invalidation of the Ordinance would impair those interests. Jackson, 282 F.R.D.
at 517.
C.

Adequacy of Representation

The requirement of inadequacy of representation is satisfied “if the
applicant shows that representation of his interest ‘may be’ inadequate; and the

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burden of making that showing should be treated as minimal.” Trbovich v. United
Mine Workers of Am., 404 U.S. 528, 540 n.10 (1972); see also Arakaki v. Cayetano,
324 F.3d 1078, 1086 (9th Cir. 2003).
Notwithstanding this generally permissive rule, a rebuttable
presumption of adequate representation arises where an existing party and the
applicant for intervention “share the same ultimate objective,” Citizens for Balanced
Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011), or where “the
government is acting on behalf of a constituency that it represents.” Arakaki, 324
F.3d at 1086. Where a presumption of adequate representation arises, the applicant
must make a “compelling showing” to the contrary. Citizens for Balanced Use, 647
F.3d at 898.
In evaluating the adequacy of representation, the Court examines three
factors,
(1) whether the interest of a present party is such that it
will undoubtedly make all of a proposed intervenor’s
arguments; (2) whether the present party is capable and
willing to make such arguments; and (3) whether a
proposed intervenor would offer any necessary elements
to the proceeding that other parties would neglect.
Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 952 (9th Cir. 2009). In
analyzing these factors, the adequacy or inadequacy of representation is judged by
analysis of the existing parties, not by the qualifications of counsel retained by the
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parties. See Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 529 (9th Cir. 1983).
i.

Representation by the County

Proposed Intervenors argue that the County may not adequately
represent their interests because the County must represent the entire county and its
varied interests, including the business and economic interests of Plaintiffs and their
employees. (Shaka Motion at 18; CFS Motion at 21-22.) Proposed Intervenors
argue that their narrower and more personal interests may be tempered by the
County’s need to balance regulation with economic and political considerations.
They also point out that Mayor Alan Arakawa and the County Council publically
opposed the Ordinance. (Shaka Motion at 16; CFS Motion at 18.) They state that
the Mayor indicated that the Ordinance is impractical, that it would be impossible to
administer, that it “would be a nightmare in this community,” and that the County
would have to create “a papaya police.” (Shaka Motion at 6-7.) Proposed
Intervenors also note that, in this case, the County did not oppose Plaintiffs’ Motion
for Temporary Restraining Order and Preliminary Injunction, but instead stipulated
to delay the enforcement of the Ordinance. (Shaka Motion at 17; CFS Motion
at 2-3, 18.)
The “assumption of adequacy when the government is acting on behalf
of a constituency that it represents” may be overcome where Proposed Intervenors

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have “more narrow, parochial interests” than the County and where they “assert[] a
personal interest that does not belong to the general public.” Arakaki, 324 F.3d at
1086; Forest Conservation Council v. United States Forest Service, 66 F.3d 1489,
1499 (9th Cir. 1995) (abrogated on other grounds by Wilderness Soc’y, 630 F.3d at
1178). Here, the Shaka and CFS Intervenors have established that their personal
interests are sufficiently distinct from the County’s general interests. Additionally,
because the Mayor and County Council have expressed views that are directly
antithetical to those of the Shaka and CFS Intervenors regarding the Ordinance, the
Court concludes that Proposed Intervenors meet their burden of showing that the
County’s representation “may be inadequate.” Trbovich, 404 U.S. at 538 n.10
(“The requirement of the Rule is satisfied if the applicant shows that representation
of his interest ‘may be’ inadequate; and the burden of making that showing should
be treated as minimal.”); Citizens for Balanced Use, 647 F.3d at 900 (“We stress that
intervention of right does not require an absolute certainty that a party’s interests
will be impaired or that existing parties will not adequately represent its interests.”).
ii.

Representation by Proposed Intervenors

The Shaka and CFS Intervenors each argue that their interests differ
enough that the other Proposed Intervenor may not adequately represent its interests
in this case. For the most part, the Court finds that Proposed Intervenors share

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common interests in that they both participated in the Ordinance’s passage (Shaka
Motion at 12-13; CFS Motion at 13-14), advertised and educated residents about the
Ordinance (Shaka Motion at 13, CFS Motion at 13-14), consist of residents whose
health and property interests are impacted by Plaintiffs’ GMO crops (Shaka Motion
at 18, CFS Motion at 11-12), and seek to protect public health, their property, and
the environment (Shaka Motion at 15, CFS Motion at 16). Indeed, Proposed
Intervenors “share the same ultimate objective” in defending the validity of the
Ordinance. Citizens for Balanced Use, 647 F.3d at 898.
One apparent difference between the intervenor groups is with respect
to the issue of abstention. The Shaka Intervenors contend that the Court should
abstain from ruling in this matter in light of the state court litigation. The CFS
Intervenors, on the other hand, maintain they do not intend to seek a stay of this case
or assert abstention as a defense. (CFS Reply at 14-15.) This difference in
strategy, however, does not mean that both groups are entitled to intervene.
“[M]ere differences in litigation strategy are not enough to justify intervention as a
matter of right.” Perry, 587 F.3d at 954 (alterations omitted). At the end of the
day, the two intervenor groups are likely to make the same or similar arguments on
the critical issues of law that will determine the result in this case.
Another difference between the two Intervenor groups is that the five

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individuals included in the Shaka Intervenors played a greater role in the initiative
process than the CFS Intervenors. They exercised their rights as qualified Maui
voters under Maui County Code Article 11 by commencing initiative proceedings,
filing a sufficient affidavit, forming the petitioners’ committee, and obtaining the
requisite petition signatures in support of the Ordinance. In light of their unique
role in the initiative process, combined with the fact that the two Intervenor groups
share similar interests and will likely make the same legal arguments in support of
the Ordinance, the Court finds that the Shaka Intervenors are entitled to party status.
After considering the relevant factors, the Court finds that the Shaka
Intervenors satisfy the four-part test to intervene as of right under FRCP Rule
24(a)(2). Their motion was timely, they demonstrate significantly protectable
interests that may be impaired by this action, and they have shown that the County
may not adequately represent their interests. The Court therefore GRANTS the
Shaka Intervenors party status in this case.
With respect to the CFS Intervenors, the Court finds that they have not
satisfied the four-part test to intervene as of right. Although their motion was
timely and they have protectable interests that may be impaired by this action, they
have not made a compelling showing that the Shaka Intervenors – who are now
“existing parties” in this case – will not adequately represent their interests. FRCP

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Rule 24(a)(2) (allowing intervention as of right “unless existing parties adequately
represent that interest”); Hartley Pen Co. v. Lindy Pen Co., 16 F.R.D. 141, 153 (S.D.
Cal. 1954) (“once intervention has been granted the intervener becomes a ‘party’”).
II.

PERMISSIVE INTERVENTION
The CFS Intervenors alternatively seek permissive intervention.

Permissive intervention under FRCP Rule 24(b) requires “(1) an independent
ground for jurisdiction; (2) a timely motion; and (3) a common question of law and
fact between the movant’s claim or defense and the main action.” Blum v. Merrill
Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013). Unlike
intervention as of right, “even if all three requirements are satisfied, the district court
has discretion to deny permissive intervention.” SEC v. Small Bus. Capital Corp.,
Civ. No. 5:12-03237 EJD, 2014 WL 3749900, at *2 (N.D. Cal. June 29, 2014). In
the Court’s discretion, it denies the request for permissive intervention since it
appears that the Shaka Intervenors will adequately protect the interests of the CFS
Intervenors.
III.

LIMITATIONS ON INTERVENTION
Plaintiffs ask the Court to impose conditions on the Shaka Intervenors.

They ask that the Intervenors adhere to the existing summary judgment schedule.
(Opp. at 21.) On this point, the Court notes that it is committed to the schedule that

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is currently in place. Any dispositive motions that are filed will be heard and
resolved prior to March 31, 2015.
Plaintiffs also ask that Intervenors be prohibited from filing their own
dispositive motions or duplicating arguments made by the County. (Opp. at 21.)
They also want Intervenors to agree to an appropriate protective order and be barred
from seeking discovery. The Court will not impose these conditions on
Intervenors. The Shaka Intervenors are permitted to file and argue their own
motions. Moreover, should there be any disagreement between the parties on the
terms of an appropriate protective order or on any discovery issue, the Court expects
the parties to meet and confer and make a good faith effort to resolve the dispute
without intervention by the Court. However, if an impasse remains, the Court will
be available for an expedited conference to minimize delay, undue burden, and
expense.
CONCLUSION
For the foregoing reasons, the Court GRANTS Alika Atay, Lorrin
Pang, Mark Sheehan, Bonnie Marsh, Lei`ohu Ryder, and Shaka Movement’s
Motion to Intervene (Doc. 37) and DENIES Moms on a Mission Hui, Moloka`i
Mahi`ai, Gerry Ross, and Center for Food Safety’s Motion for Leave to Intervene
(Doc. 40).

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 15, 2014

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Robert Ito Farm, Inc., et al. v. County of Maui, CIV. NO. 14-00511 BMK, ORDER (1)
GRANTING ALIKA ATAY, LORRIN PANG, MARK SHEEHAN, BONNIE MARSH,
LEI`OHU RYDER, AND SHAKA MOVEMENT’S MOTION TO INTERVENE AND (2)
DENYING MOMS ON A MISSION HUI, MOLOKA`I MAHI`AI, GERRY ROSS, AND
CENTER FOR FOOD SAFETY’S MOTION FOR LEAVE TO INTERVENE.

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