A pair of North Dakota farmers who want to be able to grow hemp were in US 8th Circuit Court of Appeals in St. Paul, Minnesota, Wednesday to argue their case. Farmers Wayne Hauge and David Monson, who is also a Republican state representative, applied to grow hemp under North Dakota's hemp law but have yet to receive a permit to do so from the DEA. They filed suit in federal district court in Bismarck last year, but lost at the district court level.

The farmers and their attorneys, Joe Sandler and Tim Purdon, are appealing on a number of grounds, including the district court's ruling that hemp and marijuana are the same. The farmers argued that the scientific evidence is clear that hemp is genetically distinct from drug varieties of cannabis and that there are no psychoactive effects from ingesting it.

The DEA, which has jurisdiction over drug scheduling decisions, does not recognize any difference between hemp and marijuana. Under current federal law, anyone who grows industrial hemp for use in foods, lotions, fuels, cloth, and paper, among others, is subject to prosecution under federal marijuana cultivation statutes.

Justice Department attorney Melissa Patterson told the court that state law cannot override federal law. The Constitution gives Congress the power to regulate commerce between states, Patterson said, and that is the basis of federal drug laws. "What states do cannot expand or contract Congress's interstate regulation powers," Patterson told the judges.

But Sandler retorted that that was not the question before the court. "The question here is whether the mere existence of a plant can affect interstate commerce," he said.

In an effort to allay the concerns of the appeals court panel, the farmers and their attorneys argued that North Dakota's law is so strict that their hemp could not be converted into psychoactive marijuana and that the state's monitoring of hemp fields would prevent illicit marijuana cultivation. "It would be the last place in the world that anybody would do anything illegal," Sandler said.

A decision could come down in weeks or months.