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Hemp Lawsuit Arguments Are Weak

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BISMARCK – Arguments by two North Dakota farmers who say they have a right to grow industrial hemp cannot change "unambiguous" federal law prohibiting commercial cultivation of the plant, Justice Department lawyers say.

Farmers Dave Monson and Wayne Hauge also have no more standing to sue than someone who wants to use drugs recreationally, the lawyers said in their response to the farmers' request that a judge rule in their favor without a trial.

Unless the federal Drug Enforcement Administration takes action against the farmers, the government lawyers say, Monson and Hauge "are in the same position as any hypothetical plaintiff who seeks to change federal drug law so that he can grow, smoke and/or sell marijuana free from DEA oversight."

Tim Purdon, the attorney for the farmers, said in an interview that there is a difference between the farmers' rights to grow hemp and those of pot smokers.

"The North Dakota Legislature has specifically passed a law allowing farmers in this state to grow industrial hemp," he said Friday. "So the farmers in this state who wish to do that are very different from some hypothetical plaintiff who wants to grow marijuana."

Monson, a state legislator who farms near Osnabrock, and Hauge, a farmer from Ray, want a federal judge to rule that they cannot be criminally prosecuted for growing industrial hemp under the North Dakota regulations.

Hemp, which can be used for a variety of products from rope to skin lotion, falls under federal anti-drug rules because it has trace amounts of the mind-altering chemical THC that is found in hemp's cousin, marijuana.

Government lawyers argue that there are ways to make plants with lower THC concentrations produce a high. The farmers dispute that, and say in court documents that "such hemp simply has no practical potential to be used as an illicit drug."

The Justice Department says the farmers' arguments cannot change federal law that classifies hemp as a controlled substance under DEA regulation.

Purdon said the federal Controlled Substances Act exempts "sterilized seed, oil and fiber" from the definition of marijuana. "In our case, only those commodities ... are going to leave the farm," he said.

The state licenses that Monson and Hauge have to grow industrial hemp are worthless without DEA approval, and the agency has not acted on the farmers' applications. North Dakota Agriculture Commissioner Roger Johnson hand-delivered them to the DEA in mid-February along with the farmers' nonrefundable $2,293 annual federal registration fees.

The farmers say the DEA's failure to approve their applications thwarted their plans to get a hemp crop in the ground last spring. The government says it was not reasonable for the farmers to expect a quick decision, and that the farmers should wait for a DEA decision before suing.

The farmers argue in court documents that they are faced with the choice of risking criminal prosecution or taking the matter to court.

North Dakota State University, which has been required by state lawmakers to study industrial hemp as an alternative crop and has unsuccessfully sought DEA permission since 1999, filed a legal brief Friday in support of the farmers.

"NDSU's experience demonstrates that applying to DEA for a registration to cultivate industrial hemp clearly involves an 'unreasonable or indefinite timeframe for administrative action,'" the brief says.

The farmers' lawsuit, filed in June, is being funded by the nonprofit Vote Hemp group. The Justice Department has asked that U.S. District Judge Daniel Hovland in Bismarck dismiss it.

Oral arguments are scheduled Nov. 14 on that motion and on the farmers' request that Hovland rule in their favor.

The Jamestown Sun
 
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