HONOLULU, Hawaii – Attorneys on either side of the Big Island’s GMO fight made their case before federal court judges on Wednesday.

Hawaii County is appealing a federal court decision that overturned its ban on genetically engineered crops.

At the heart of the matter is preemption; when state law conflicts with federal law, the United States law serves as law of the land. At the same time, if county law conflicts with state law, state law prevails.

On November 26, U.S. Magistrate Judge Barry Kurren ruled in favor of a group of plaintiffs (led by the Hawaii Papaya Industry Association) seeking to invalidate Hawaii County Ordinance 13-121, a law passed by the Hawaii County Council in 2013 restricting the cultivation of new Genetically Modified Organisms on Hawaii Island.

Kurren agreed with plaintiffs that the county ordinance is expressly preempted by federal law, citing the federal Plant Protection Act, “but only to the extent that express federal preemption applies to the Ordinance’s ban on field testing of genetically engineered plants that are ‘plant pests’ or ‘noxious weeds’”. The Court did not to find that the GMO ban “is impliedly preempted” by federal law. The judge also agreed that a state preemption applies.

Judge Kurren also enjoined a similar Kauai County law on pesticides and genetically modified crops. A GMO moratorium on Maui was also thrown out.

On December 17, the Hawaii County Council voted to appeal. Paul Achitoff, managing attorney for the Earthjustice mid-Pacific regional office, offered to help the county going forward.

All three counties presented their oral arguments back to back in the U.S. Court of Appeals for the Ninth Circuit in Honolulu on Wednesday.