NoDak Farmers Continue Fight for Hemp in Federal Appeals Court

North Dakota federal District Judge Daniel Hovland on Nov. 28 dismissed from his court a lawsuit brought by two local farmers seeking freedom to cultivate industrial hemp, in compliance with state law and without the looming interference of the Drug Enforcement Administration. In that way the DEA, which sought to have the suit dismissed, has won the first battle, but farmers Dave Monson and Wayne Hauge, who this week appealed that ruling to the 8th U.S. Circuit Court of Appeals, intend to win the war.

The DEA’s position is rote: All forms of the plant Cannabis sativa L. are, by definition, marijuana, and marijuana is subject to the strictest of enforcement under the Controlled Substances Act. Monson, a third-generation farmer and veteran Republican state lawmaker, and Hauge, a certified-seed dealer and accountant, see things differently. They argue that they should be allowed to grow the nonnarcotic strain of the plant, commonly known as industrial hemp, which is used in a wide variety of consumer goods – from car parts to clothing, to shampoo and snack chips – pursuant to stringent state law that regulates when, where, how, and by whom, the crop can be cultivated. Notably, under state law, only strains of Cannabis sativa L. that contain less than .3% tetrahydracannibinol, or THC – the main psychoactive ingredient in pot – can be grown, a level low enough to render the plant useless as a drug.

Although the DEA has the power to grant permission for individuals or institutions to cultivate hemp, they are, arguably, utterly disinterested in doing so: The agency has only granted one such permit, long since expired, to researchers in Hawaii. More often the agency sits on such applications – as it has with a submission made by the North Dakota State University in 1999 and, more recently, with applications submitted by Monson and Hauge in February. (Adding insult to injury, permits must be annually renewed – and accompanied by a nonrefundable fee of more than $2,000.)

Initially, North Dakota state law required its licensed hemp farmers – who must submit to a criminal background check, provide fingerprints and Global Positioning System coordinates for their hemp crop, and agree to random inspection of their fields, among other prelicensing requirements – to receive permission from the DEA before sowing their hemp crops. This spring state lawmakers repealed that provision, however, concluding that because hemp is nonnarcotic, there’s no legal need for state-licensed farmers to seek DEA approval. That was, in part, the argument lawyers for Monson and Hauge made during oral arguments before Hovland in mid-November. And although it appears that Hovland is sympathetic to the farmers’ situation, in his 22-page opinion, he concluded that the CSA does regulate industrial hemp and that if Monson and Hauge want to change that, they’re better off lobbying Congress. “The [CSA] definition of ‘marijuana’ unambiguously includes the Cannabis sativa L. plant and does not in any manner differentiate between Cannabis plants based on their THC concentrations,” he wrote.

Still, Hovland’s opinion makes clear that he isn’t at all impressed with the DEA’s handling of hemp-cultivation applications (that is, employing a strategy of mind-numbing bureaucratic foot-dragging). “It is apparent from the record that the DEA has, arguably, prejudged the merits of the registration applications by characterizing them as requests being submitted by ‘manufacturers of marijuana – which is the most widely abused controlled substance in the U.S,’” he wrote. “It is clear that the issue presented by the plaintiffs in this action may never be addressed and resolved by the DEA through the registration and application process. As a practical matter, there is no realistic prospect that the plaintiffs will ever be issued a license by the DEA to grow industrial hemp,” he continued. “The futility of waiting until a registration application submitted to the DEA is acted upon is apparent.” Indeed, Hovland notes that 1999 NDSU application is still, technically, pending. “There appears from the record to be no legitimate excuse for this unreasonable delay,” Hovland wrote. (NDSU researchers filed a friend-of-the-court brief in support of Monson and Hauge.)

In sum, Hovland opined that if North Dakota farmers want to cultivate industrial hemp, they should lobby Congress to change the CSA. “Industrial hemp may not be the terrible menace the DEA makes it out to be, but industrial hemp is still considered a … controlled substance under the current state of the law in this circuit and throughout the country,” he wrote. “The policy arguments raised by the plaintiffs are best suited for Congress rather than a federal courtroom in North Dakota.”

While Monson and Hauge are now seeking relief from the 8th Circuit, Hovland’s harsh assessment of DEA strategy in open court last month appears to have had at least one positive effect: On Nov. 26, the DEA sent NDSU a proposed “memorandum of agreement” approving – finally – the university’s application to grow hemp for agricultural research.

Baby steps, baby steps.