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Press Release: Court Rejects North Dakota Farmers’ Bid to Grow Industrial Hemp

FOR IMMEDIATE RELEASE: November 29, 2007 CONTACT: Adam Eidinger: 202-744-2671, adam@votehemp.com or Tom Murphy: 207-542-4998, tom@votehemp.com Court Rejects North Dakota Farmers’ Bid to Grow Industrial Hemp Congress Should Address this Problem, Says Judge Lawsuit Motivated DEA to Offer Hemp Research Agreement to NDSU after Eight-Year Wait BISMARCK, ND – Two North Dakota farmers, who filed a federal lawsuit in June to end the U.S. Drug Enforcement Administration’s (DEA) ban on commercial hemp farming in the United States, had their case dismissed by federal Judge Daniel Hovland yesterday. In a 22-page decision, Judge Hovland wrote that the problem facing state-licensed hemp farmers David Monson and Wayne Hauge needs to be addressed by Congress if they hope to ever grow the versatile crop which is used in everything from food and soap to clothing and auto parts. The decision can be read at: http://www.votehemp.com/legal_cases_ND.html. Lawyers working on behalf of the farmers are considering an appeal on a number of issues. In particular, the Court ruled that hemp and marijuana are the same, as the DEA has contended for years. However, scientific evidence clearly shows that not only is industrial hemp genetically distinct from the drug marijuana, there are also absolutely no psychoactive effects from ingesting it. “Obviously we are disappointed with the decision,” says Eric Steenstra, President of Vote Hemp, a grassroots group working to bring industrial hemp farming back to the U.S. “The Court’s decision shows it understands that the established and growing market for industrial hemp would be beneficial for North Dakota farmers to supply. Yet the decision overlooks Congress’s original intent – and the fact that farmers continued to grow hemp in the U.S. for twenty years after marijuana was banned. If the plaintiffs decide to appeal the case, we would wholeheartedly support that effort. We are not giving up and will take this decision to Washington, DC to prompt action by Congress on HR 1009, the Industrial Hemp Farming Act of 2007, which would clarify a state’s right to grow the crop,” adds Steenstra. In a related development, Vote Hemp has learned that the DEA has sent a “Memorandum of Agreement” to North Dakota State University (NDSU) which, if signed by the school, would clear the way for industrial hemp research there. NDSU filed an amicus brief in support of the farmers’ lawsuit which highlighted the university’s eight-year struggle to secure a license from the DEA to grow industrial hemp for research as mandated by state law. “It seems our arguments about the DEA’s delay in processing NDSU’s application have resulted in the agency finally taking positive action to allow research,” comments David Bronner, President of the Hemp Industries Association (HIA) and Dr. Bronner’s Magic Soaps, a manufacturer of soap and other body care products using hemp oil imported from Canada. Vote Hemp, the nation's leading industrial hemp advocacy group, and its supporters are providing financial support for the lawsuit. If it is ultimately successful, states across the nation will be free to implement their own hemp farming laws without fear of federal interference. More on the case can be found at: http://www.VoteHemp.com/legal_cases_ND.html.
Bismarck, ND
United States

Needle Exchange Action May Be Imminent

Last spring at the National African American Drug Policy Coalition summit here in Washington, the question was asked of Donna Christian-Christensen (Congressional Delegate from Guam, the closest thing the territories have to US Representatives), a physician and chair of the Congressional Black Caucus’ Health Braintrust, what the prospects were for repealing the ban on use of federal AIDS grant funds to support needle exchange. Her answer was, "We're going to give it a good try." I took that to mean "it's not going to happen this time." The issue has made some progress however, at least as it affects us here in the District of Columbia, where a particularly infamous part of the annual appropriations bill prevents DC from spending even its own locally-collected tax funds on needle exchange appears to be on its way to getting repealed, thanks to positive action by a House subcommittee that drafted the new appropriations bill. I know better than to take it as a given that repeal will make it all the way through. But it is looking pretty good, and at the PreventionWorks! anniversary party this evening -- attended by new PW executive director Ken Vail -- AIDS Action lobbyist Bill McColl informed the crowd that it could hit the floor within a few days. Earlier this year we reported that Hillary Clinton was noncommittal about lifting the ban during a videotaped exchange at a private forum with prominent AIDS activists. The exchange was fascinating; after several pointed back-and-forths with Housing Works executive director Charles King, Sen. Clinton directly acknowledged that it was political concerns only that accounted for her position (though the kinds of concerns that can't necessarily be dismissed offhand). Sen. Obama, by contrast, had stated his support for lifting the ban. This week Clinton took the plunge and made strong pro-needle exchange promises in a campaign statement on AIDS funding. What would ultimately happen with this in a Clinton presidency, or any Democratic presidency, is probably hard to predict -- politics is still politics. But the fact that the Democratic candidates are lining up to support the issue has McColl feeling cautiously optimistic that the Democratic Congress won't drop the ball on the DC language at least. And it's encouraging for all of us about the long-term. The federal needle exchange restriction came to a boil during the Clinton administration, when the findings needed to lift the ban -- needle exchange doesn't increase drug use, but does reduce the spread of HIV -- were made by the administration, but not acted on. Some advocates believe that if Donna Shalala had been on a certain Air Force One flight, instead of Barry McCaffrey, that it would have happened. It took a change in Congress to even get the issue back onto the radar screen; more may be needed to actually get the law changed. Still, let's keep our fingers crossed for the DC ban to be lifted, maybe even by the end of the year. Assuming that happens: Let's Do Heroin! (That was sarcasm, in case anyone didn't realize.)
Washington, DC
United States

Sentencing: US Prison Population Could Be Cut in Half With Four Humane Reforms, Including Drug Decriminalization, Report Says

The United States, home of the world's largest prison population, both per capita and in real terms, could save $20 billion a year and cut that population in half by adopting a handful of systemic reforms, including decriminalizing drug possession, said a prestigious group of social scientists in a report released Monday. Noting that the US prison population had grown eightfold since 1970, steadily increasing whether crimes rates were going up or down, the report called US prisons a "self-fueling system."

The report, Unlocking America was released by the JFA Institute, a Washington, DC, research organization that studies issues related to corrections and penal populations. It was authored by eight prominent criminologists and James Austin, president of JFA.

The massive increase in imprisonment in the past four decades has had little impact on crime, but has imposed substantial costs on society -- and on offenders and their families, the report found. "Our contemporary laws and justice system practices exacerbate the crime problem, unnecessarily damage the lives of millions of people (and) waste tens of billions of dollars each year," it said.

Referring to President Bush's pardon of disgraced former White House aide Lewis "Scooter" Libby, the report noted: "President Bush was right. A prison sentence for Lewis "Scooter" Libby was excessive -- so too was the long three year probation term. But while he was at it, President Bush should have commuted the sentences of hundreds of thousands of Americans who each year have also received prison sentences for crimes that pose little if any danger or harm to our society."

Those people are the victims of what the authors described as "three key myths" that drive criminal justice policy: That there are "career criminals" who can be identified and imprisoned to reduce crime, that tougher penalties are needed to protect the public from "dangerous criminals," and that tougher penalties will deter criminals. The authors devote extensive space to debunking those policy-driving misconceptions.

"The system is almost feeding on itself now. It takes years and years and years to get out of this system and we do not see any positive impact on the crime rates," Austin, a coauthor of the report, told a news conference.

A more humane, less expensive, and greatly reduced prison system could be achieved by enacting four fundamental reforms, the report concluded. They are:

  • Reduce time served in prison.
  • Eliminate the use of prison for parole or probation technical violators.
  • Reduce the length of parole and probation supervision periods.
  • Decriminalize "victimless" crimes, particularly those related to drug use and abuse.

Regarding decriminalizing drug offenses, the report noted: "In recent years, behaviors have been criminalized that are not dangerous and pose little if any threat to others. A large group of people are currently serving time for behaviors that have been criminalized to protect people from themselves. Their offenses involved the consent of all immediate parties to the transaction. Common examples in American history have included abortion, gambling, illicit sexual conduct that does not involve coercion (e.g., prostitution and, until recently, homosexual activity), and the sale and possession of recreational drugs. According to the US Department of Justice, approximately 30-40% of all current prison admissions involve crimes that have no direct or obvious victim other than the perpetrator. The drug category constitutes the largest offense category, with 31% of all prison admissions resulting from such crimes."

The drug war is futile and has nasty collateral consequences, the report concluded. "Every time a dealer is taken out of circulation by a prison sentence, a new dealer is drawn in by the lure of large profits. The prosecution and imprisonment of low-level traffickers has increased racial disparities, and is the largest factor contributing to the rapid rise in imprisonment rates for women. Dealers' use of violence to eliminate competition helps to sustain the myth linking drug use to violence. Notwithstanding our extraordinary effort to discourage the use and sale of illegal drugs, they remain widely available and widely used."

Better than a prison-filling policy of prohibition, would be a regulatory approach to drugs, the report said. "Regulatory approaches, such as are now used for drugs that are not illegal should be given serious consideration. The success of recent referenda in several states allowing medical use of marijuana suggests that the public opinion may be changing."

Public opinion would change even faster if more people read this report. It is a scathing indictment of a failed and inhumane set of criminal justice and drug policies. $20 billion a year in savings from adopting the suggested reforms is easily quantifiable; the reduction in human suffering by reducing the prison population in half, while equally significant, is not so easily measured.

Feature: Higher Education Act Drug Conviction Penalty Repeal Stymied As Democrats Choke -- Again

A step toward victory turned to ashes for the broad coalition pushing for repeal of the Higher Education Act's (HEA) drug provision (also known as the "Aid Elimination Penalty") last week as, for the second time this year, key Democratic politicians refused to push it ahead. Now, the only chance to achieve repeal this session will come in conference committee, thanks to a possible tactical error by the bill's author.

Bobby Scott offers his short-lived HEA amendment this month
Earlier this year, language that would have removed the drug question from the federal financial aid form, but without repealing the underlying law, made it as far as the Senate floor as part of language approved by the Health, Education, Labor & Pensions (HELP) Committee for the years-delayed HEA reauthorization bill. Sen. Lindsey Graham (R-SC), however, offered a successful amendment to strip the language, which HELP Chairman Sen. Ted Kennedy (D-MA) as floor manager allowed to go through without a fight. Last week, House Democrats led by Rep. George Miller (D-CA), chair of the House Committee on Education & Labor and a supporter of repeal, declined to hear an amendment to their HEA bill that would have enacted repeal.

The Aid Elimination Penalty bars students with drug convictions from receiving federal financial aid for specified periods of time from their conviction dates. As originally written by Rep. Mark Souder (R-IN), it punished students for any infraction in their past. But last year, under pressure from a broad range of educational, religious, civil rights, and other groups organized into the Coalition for Higher Education Act Reform (CHEAR), Souder amended his own law so that it now applies only to offenses committed while a student is in school and receiving aid.

Under the provision, more than 200,000 students have been denied financial aid. An unknown number have been deterred from even applying because they believed -- rightly or often wrongly -- that their drug convictions would bar them from receiving aid.

Instead of going for repeal, as key Democrats had promised, the committee heard and adopted two amendments to the provision by its author, Rep. Mark Souder (R-IN), which are actually seen by advocates as likely to be positive steps. One would require schools to inform enrolling students in writing about the existence of the penalty. Another would loosen a clause in the law that currently allows students to regain their eligibility for financial aid by completing a drug treatment program, by allowing them to just pass two randomly-scheduled drug tests administered by a treatment program.

The dispute over the Aid Elimination Penalty wasn't limited to Capitol Hill committee hearings. In a move to the blunt the efforts of the penalty's foes, Souder sent out a Dear Colleague letter where he accused the 500 groups that belong to CHEAR of being "drug legalizers," an attack that did not go unnoticed.

"I wanted to make you aware of an important provision in the current law that is facing assault by a small but determined coalition of drug-legalization groups," Souder wrote in the November 1 letter. "Before you are bombarded by the talking points of such groups, I wanted to make sure everyone has the facts straight," he wrote.

Taking umbrage at Souder's characterization of their organizations, 16 groups responded with their own letter to Souder, asking him to retract his statement and requesting a meeting with him to explain directly why they oppose his law. "We, the undersigned organizations, would like to assure you that the coalition supporting repeal of the Aid Elimination Penalty ranges far beyond 'drug-legalization groups,' said the letter. "Last week, over 160 organizations signed a letter to Education & Labor Committee Chairman George Miller and Ranking Member Buck McKeon calling for full repeal, bringing the total number of groups in opposition to the penalty to more than 500. These organizations represent a broad range of interests, including the areas of addiction treatment and recovery, civil rights, college administration and admissions, criminal justice, legal reform and faith leaders. The overwhelming majority of signatories of the letter to Chairman Miller and Ranking Member McKeon do not endorse drug legalization. As just a small sampling of such organizations, we, the undersigned, want to make clear that opposition to the [anti-drug provision] is not in any way dependent on support for broad drug legalization."

The signatories to the letter were the American Federation of Teachers, the American Friends Service Committee, the Coalition of Essential Schools, College Parents of America, the Fellowship of Reconciliation, Friends Committee on National Legislation, International Nurses Society on Addictions, the National Association of Social Workers, National Council on Alcoholism and Drug Dependence, National Education Association, National Women's Health Network, National Youth Rights Association, Therapeutic Communities of America, the Union for Reform Judaism, the United Church of Christ Justice and Witness Ministries, the United Methodist Church-General Board of Church and Society, and the United States Student Association."

Souder didn't respond to that letter, but he did lash out again, this time at the Capitol Hill newspaper The Politico, whose Ryan Grim had been writing about the conflict. In a letter published in the The Politico complaining about the coverage of him calling people drug legalizers, Souder resorted to the very same tactic. "Your readers ought to know that Grim was previously employed by the Marijuana Policy Project, a drug legalization group," Souder wrote. "Grim is hardly an objective reporter." However, he did not contest any of the facts Grim reported. Grim's biography, including his past employment, is available at The Politico's web site.

Souder has clearly shown himself to be a dogged defender of his creation. If only the Democrats had shown the same fortitude in fighting to repeal it, advocates complained. "It's disheartening that a huge chorus of experts in substance abuse and education, as well as tens of thousands of students are calling for repeal, and Congress still hasn't listened," said Tom Angell, director of government relations for Students for Sensible Drug Policy, one of the point groups in the campaign.

Bill Piper, director of national affairs for the Drug Policy Alliance, was less diplomatic. "By not changing this counterproductive policy, Democrats are saying that tens of thousands of students should be kicked out of college and denied an education," he said. "The American people have moved beyond the drug war hysteria of the 1980s, but many Democrats still don't realize this," said Piper. "They're afraid reforming draconian drug laws will make them look soft on crime, even though polling shows that voters are tired of punitive policies and want change." Democrats had "chickened out," he said.

In the House committee last week, Rep. Bobby Scott (D-VA) spoke eloquently about the injustice of the HEA drug provision, but then withdrew his amendment to kill it, noting that the Chair was not prepared to hear amendments that would have financial implications.

"Denying students aid for drug-related charges is simply bad policy," said Scott. "It increases long-term costs to society. It unfairly targets poor and minority students -- minority students because they are traditionally profiled for drug offenses, and poor students because those are the ones that need financial aid to attend school. It only does drug offenses. It doesn't do anything against armed robbery, rape or arson. And so it's somewhat bizarre in its application and it creates a double jeopardy for students who have already paid their debt to society."

Scott then asked that a list of the more than 500 organizations supporting repeal be entered into the congressional record, and then he withdrew his motion. "Unfortunately, Mr. Chairman, as you've indicated, you're not considering amendments that would have to be scored financially and because of that, Mr. Chairman, I will withdraw this amendment at the end of the debate, because we do not have an offset."

Then, after Chairman Miller -- to advocates' consternation -- congratulated Souder for his persistence in scaling back the law, Souder introduced the pair of amendments mentioned above. "Without objection, both of these amendments will be accepted," Miller said, accepting them without having written copies before the members. "It's just a testimony to the extent to which we trust Mr. Souder's word here."

While activists are disheartened -- to put it mildly -- by the performance of the Democrats, they still see some faint hope for action later this session, and it could come because Souder, by introducing his amendments, will open the bill to discussion in conference committee. "Souder may have screwed up here," said SSDP's Angell. "Because the House version now has language modifying the penalty, that automatically makes it a topic for the conference committee."

While activists want outright repeal, they are pleased with this year's Souder amendments. "If Congressman Souder keeps working year after year to keep chipping away at his aid elimination penalty, he will end up doing our work for us," said Angell. "We encourage Souder in his continuing effort to scale back his own creation."

Eric Sterling, President, Criminal Justice Policy Foundation, Opening of "Out from the Shadows" Drug Legalization Summit

Eric Sterling, President of the Criminal Justice Policy Foundation, emcees and describes his visit to Latin America with members of the US Congress while serving as counsel to the House of Representatives Judiciary Committee. From Out from the Shadows: Ending Drug Prohibition in the 21st Century, February 2003, via YouTube:

Press Release: Judge Promises Decision by End of November in North Dakota Hemp Farming Lawsuit – Monson v. DEA

FOR IMMEDIATE RELEASE: November 15, 2007 CONTACT: Adam Eidinger at 202-744-2671, adam@votehemp.com, or Tom Murphy at 207-542-4998, tom@votehemp.com Judge Promises Decision by End of November in North Dakota Hemp Farming Lawsuit – Monson v. DEA BISMARCK, ND – Two North Dakota farmers who filed a lawsuit in June to end the U.S. Drug Enforcement Administration’s (DEA) ban on commercial hemp farming in the United States were in U.S. District Court on Wednesday, November 14, 2007. The farmers, State Rep. David Monson of Osnabrock and Wayne Hauge of Ray, observed the oral arguments made before Judge Daniel Hovland on their behalf by attorneys Tim Purdon and Joe Sandler. Judge Hovland stated he had read and re-read the briefs filed by both sides in the landmark case and concluded the hearing by saying, “I promise to make a decision by the end of the month,” in regards to the DEA’s motion to dismiss. In the meantime, Judge Hovland stayed the farmers motion for summary judgment as he felt the motion to dismiss should be dealt with first. “Today’s arguments revealed numerous weak points that the DEA is relying on to thwart this landmark case,” said Eric Steenstra, President of Vote Hemp. “The DEA’s assertion that the farmers didn’t have standing because they haven’t grown industrial hemp yet was rejected by Judge Hovland when he said ‘I am not convinced that the plaintiffs have to expose themselves to prosecution’ and reminded Department of Justice (DOJ) Attorney Wendy Ertmer, who argued on behalf of the government, that ‘this Court has jurisdiction to make a declaratory judgment,’ which is what we are seeking,” added Steenstra. Judge Hovland expressed skepticism that the DEA would ever act on the applications, based on the fact that an application by North Dakota State University was still pending after more than eight years. Judge Hovland also indicated he thinks that the DEA has “prejudged the merits of the applications to grow hemp.” While much of the government’s dispute centered on their contention that this case is not ripe because they are still considering the farmers’ application, attorney Joe Sandler argued that the application the farmers made to the DEA is no longer really the issue. “This case is unique because North Dakota is the only state to regulate industrial hemp so only the exempted portions of plant, that is, the non-viable seed, stalk and oil, enter commerce of any kind, whether intrastate or interstate,” said Sandler. “When the North Dakota legislature changed its eight-year-old hemp law to no longer require a DEA license this past April, it made it a matter of state law that the farmer who goes through the licensing process need not involve the DEA in any way since only the exempted portions of the plant, as described in the Controlled Substances Act, would enter commerce.” Judge Hovland also asked Ms. Ertmer what the DOJ’s position is on HR 1009, the federal Industrial Hemp Farming Act of 2007. Ms. Ertmer said she did not know, however Vote Hemp believes that the DOJ would in fact aggressively oppose the Act if it were to be heard in Congress. A transcript of the November 14 hearing will be available in a couple weeks. If successful, the landmark lawsuit will lead to the first state–regulated commercial cultivation of industrial hemp in fifty years. Vote Hemp, the nation's leading industrial hemp advocacy group, and its supporters are providing financial support for the lawsuit. If it is successful, states across the nation will be free to implement their own hemp farming laws without fear of federal interference. More on the case can be found at: http://www.VoteHemp.com/legal_cases_ND.html.
Bismarck, ND
United States

Medical Marijuana: Invited By "Pro-Family Group," Drug Czar's Chief Scientist Testifies at Tennessee House Hearing

A Tennessee House committee considering a medical marijuana bill heard from a number of witnesses, many of them hostile, including Office of National Drug Control Policy (ONDCP) chief scientist Dr. David Murray, at a hearing this week. Much of the opposition was organized by a "pro-family" Christian organization normally worried about issues such as gay adoption and subtle anti-Christian messages in movies. Reformers were present too, among them Marijuana Policy Project legislative analyst Nathan Miller and Maury County epidemiologist and substance abuse researcher Bernie Ellis, himself a medical marijuana patient.

The hearing came Tuesday before the House Health and Human Services Committee on House Bill 486, sponsored by Rep. Sherry Jones (D-Nashville). The bill would create a state identity card and registry system for terminally ill patients only. But even that was too much for drug war bureaucrats and moral crusaders.

According to a report in The Chattanoogan, Murray, New York anti-drug crusader Steven Steiner, and Nashville oncologist Dr. Kent Shih, who all testified against the bill, all appeared thanks to the efforts of the Family Action Council of Tennessee. Headed by former state Sen. David Fowler, the council says it promotes "the culture that values the traditional family, for the sake of the common good" and is generally concerned with opposing reproductive rights, restricting adult-oriented businesses, and fighting homosexuality.

"We appreciate the willingness of these individuals to come, at their own expense, to educate the committee members about what is really at stake in the debate over 'medical marijuana,'" said Fowler. "Having seen my own mother suffer and die from cancer, I know how much we all desire to see relief for those we love. But we cannot allow the compassion of the average American to overcome good science and good medicine. Nor can we allow that compassion to be manipulated by those who have, as their ultimate agenda, the legalization of marijuana and even other drugs."

Worse yet, Fowler said, the bill "would inevitably lead to increased public consumption of marijuana and make a mockery of our criminal drug laws. What has been observed in other states is that marijuana distribution becomes uncontrollable in society at large even when it is restricted to 'medicinal uses.' With an individual able to produce up to 13,000 joints per year under this bill, it is naïve to think that those joints won't wind up in the wrong hands."

Fowler also cited California's wide-open medical marijuana scene to suggest the Tennessee bill would make enforcement of the criminal law regarding marijuana impracticable. "In North Hollywood, there are now more medical pot clubs than there are Starbucks. In fact, the co-founder of the California medical pot referendum has now said that most of the medical pot dispensaries in California are 'little more than dope dealers with storefronts,'" he added, citing the infamous words of Scott Imler.

Miller told committee members 12 states have medical marijuana laws and there was no evidence they "send the wrong message" to young people. In 11 of those states, Miller pointed out, teen marijuana use had declined.

Ellis, who suffers from degenerative joint disease and fibromyalgia, and who was convicted on federal drug charges for growing medical marijuana for himself and providing it for free to four terminal patients, said that marijuana was once a significant medicine before it was banned 70 years ago. He read testimonials from cancer and AIDS patients who said marijuana helped eased their suffering. "We would not be here urging you to make medical marijuana legal again in the state if it were not safe and effective," Ellis said.

ONDCP's Murray told lawmakers they should not do an end run around the Food & Drug Administration. "My concern is we're doing more harm than good with these measures," he said.

Dr. Shih, who practices in Nashville, told the committee that marijuana is "impractical" and that other legal medications are as effective. "I believe there are safer drugs," he said.

William Benson, assistant director of the Tennessee Bureau of Investigation, also testified. He said the bill could present complications for law enforcement because Tennessee is a leading producer of marijuana.

Rep. Jones, for her part, went after Fowler's characterization of her bill as a stalking horse for legalization. "This is not about making marijuana legal across the state. This is strictly for medical reasons, only to help people feel better," Jones said. "Any suggestion that there might be something hidden in the legislation is absurd."

Former Sen. Steve Cohen (D-Memphis), now a member of the US House of Representatives, tried with no luck to get a medical marijuana bill through in years past. Jones' bill is unlikely to go anywhere this year, although she said she was open to changes that could make it more politically palatable next year. Given the mobilization of the "pro-family" groups and the participation of the drug czar's office, it will be an uphill battle in the Volunteer State. The drug czar has lost before, though, so stay tuned.

Feature: Would-Be North Dakota Hemp Farmers Have Another Day in Court

A pair of North Dakota farmers who are suing the federal government over the DEA's failure to act on their applications to grow hemp will know by month's end if their case will continue, a federal district court judge in Bismarck said Wednesday. That comment from Judge Dan Hovland came at the end of a hearing on a motion by the government to dismiss the case.

Wayne Hauge, David Monson, ND attorney Tim Purdon
Drug War Chronicle was there, sitting in the back of the courtroom as the farmers, the state of North Dakota, and hemp industry advocates took on a stubborn and recalcitrant DEA and its Justice Department mouthpieces. Besides the plaintiffs and lawyers for both sides, only a handful of hemp advocates and local media reporters were present.

Judge Hovland said he will rule on the motion within two weeks. He also stayed other motions before the court pending his ruling on the motion to dismiss.

Hemp products may be imported to the US, but a DEA ban on domestic production prevents US farmers from growing it, meaning domestic hemp product makers must turn to suppliers in countries where it is legal to grow, including Canada, China, and most of Europe.

Hemp is a member of the cannabis family, but unlike the marijuana consumed by recreational and medical marijuana users, contains only tiny amounts of the psychoactive substance that gets marijuana users "high." But the DEA argues that hemp is marijuana and that the Controlled Substances Act gives it authority to ban it.

The farmers and their attorneys disagree, pointing out that the CSA contains language explicitly exempting hemp fiber, seed oil, and seed incapable of germination from the definition of "marihuana" and are thus not controlled substances under that law. That same language was used to allow the legal import of hemp into the US as a result of a 2004 federal court decision siding with the hemp industry against the DEA.

The lawsuit filed by farmers Wayne Hauge and Dave Monson (who is also a Republican state legislator) is only the latest chapter in a decade-long struggle by North Dakota farmers to grow hemp. The state first passed hemp legislation in 1997, but things really began moving when state Agriculture Commissioner Roger Johnson, a strong hemp supporter, issued the first state permits to grow hemp to Hauge and Monson on February 6. One week later, Hauge and Monson sent a request to the DEA requesting licenses to grow their crops and noting that they needed a response by early April in order to get the crops in the ground this year.

The DEA failed to respond in a timely fashion. According to a March 27 DEA letter to Ag Commissioner Johnson, seven weeks was not enough time for the agency to arrive at a ruling on the request. That letter was the final straw for the North Dakotans, who then sued in federal court to get the DEA out of the way.

Just as the DEA appears determined to stall the hemp applications -- it has been sitting on one from North Dakota State University for eight years -- so the Justice Department seems much more interested in killing the case than arguing it. Wednesday's hearing in Bismarck saw Assistant US Attorney Wendy Ertmer try to make the case go away by arguing that the plaintiffs had no standing to sue the government because they had not been arrested or indicted and by arguing that district court was not the proper venue to hear it.

"The plaintiffs have suffered no injury," said Ertmer.

"Must they expose themselves to arrest to have standing?" asked an incredulous Judge Hovland.

"Generally, yes," Ertmer responded.

Hovland and Ertmer also tangled over the issue of jurisdiction, with Ertmer arguing that challenges to administrative rulings should be handled by federal appeals courts. Hovland seemed to differ, saying that district courts can indeed render declaratory judgements.

Judge Hovland also questioned Ertmer closely over the DEA's failure to act on either the NDSU application or Hauge and Monson's application. "There seems to be no realistic prospect that the DEA will grant the applications," he said.

"Why has it taken eight years and there is still no response to the NDSU application?" he asked. "Is exercising administrative remedies an exercise in futility? I see no prospect the plaintiffs will ever get a license," he said.

Throughout, Ertmer stuck to her guns and the government's official position that hemp is marijuana. She repeatedly referred to industrial hemp as "bulk marijuana" and derided North Dakota legislation that defines hemp as distinct from marijuana as meaningless. "It's still marijuana," she said.

Washington, DC, attorney Joe Sandler, who is representing the plaintiffs, provided a hint of arguments to come as he argued that neither the Supreme Court decision in the Raich case nor an 8th Circuit Court of Appeals case banning South Dakota Lakota Indian Alex White Plume from growing hemp on the Pine Ridge reservation should be controlling in the current case.

Hovland listened attentively, but then, noting that an industrial hemp bill had been introduced in Congress, wondered if a political solution were not the most appropriate. "Isn't the best remedy to amend the definition of industrial hemp under the (federal) Controlled Substances Act?" he asked. "To me, it seems like the easiest solution."

But Hauge, Monson, and their allies in the North Dakota state government and the hemp industry aren't waiting on Congress or the DEA. "If NDSU needed eight years and nothing was resolved, I think the DEA is trying to wait us out," Monson said. "It's a de facto denial of our license and that's part of our frustration."

Hauge and Monson said hemp could be a beneficial crop for North Dakota farmers. "We can start an entire industry with fiber, oil and meal," Monson said. "There are literally thousands of uses. This could be a huge economic benefit for North Dakota."

He is already getting requests for product from people who mistakenly think he's already growing a hemp crop, he said. "At least weekly, someone is calling asking to buy fiber or seed," Monson said. "There is certainly a market, especially on the West Coast and especially in the food industry. We can benefit here in North Dakota from the fiber."

Hauge, who farms a spread near the Canadian border in the western part of the state, said hemp is a potential money-maker, especially when grown in rotation with his durum, pea, and lentil crops. "You can make a profit, it's not just an alternative," Hauge said. "This is a rotation with a profit."

Hauge was hopeful following the hearing, saying he expected a ruling in the plaintiff's favor. "I'm positive about this," Hauge said. "The judge asked good questions and it shows his insight."

If Hovland denies the government motion to dismiss, it's back to court, where the plaintiffs will seek a summary declaration in their favor. But the federal courts move slowly, and planting season is only a few months away.

Editorial: They Know More Than They're Willing to Admit About the Drug War

David Borden, Executive Director

David Borden
There was a notable moment, back in the early '90s, that helped inspire me to really get involved in the legalization cause. Early in her brief tenure as US Surgeon General, Dr. Joycelyn Elders asked a question about drug legalization at a public event, responding that while she wasn't sure what the ramifications of legalization would be, she believed that legalization would reduce crime, and that it should be studied.

The reaction was fast and furious, and (predictably) mostly negative. Elders later described it as "the day it rained on me." Still, to me it seemed that the issue had come alive. It was a little surreal to see a member of the president's cabinet say such a thing. The debate was stimulated, even if on the political level one might take an adverse lesson.

Another thing Elders said later was that more people agreed with her than were willing to admit it publicly. Senators came up to her at airports, she recounted, saying she was right and they agreed, but politically they couldn't say so. At least one politician defended her on the basis of it being important to talk about an issue where our policy is clearly not succeeding -- John Tierney from Massachusetts, if I remember correctly -- though he didn't stake out a pro-legalization position himself. But Tierney was in the rare minority. For the most part, the establishment rained on Elders -- possibly including people who knew better, and many who knew better failed to speak up at all.

Lamar Alexander, a Republican from Tennessee, made some interesting comments on the floor of the Senate this week. The subject of the debate was a bill to combat illegal logging, but drugs came up by analogy. I've posted the remarks in our blog already, but they bear repeating:

"The Senator from Oregon [Ron Wyden (D)] made a point that is maybe the central point here when he compared our efforts to stop illegal logging to our efforts to stop the bringing of illegal drugs into the United States. We all know the tremendous amount of effort we go to, for example, to keep cocaine out of the United States. We send millions of dollars to Colombia and to other countries and we try to stop that. But the real problem we have is we are a big, rich country, and there is a big demand for cocaine here. So no matter what we do in the other countries, the cocaine still keeps coming in, and the same with other illegal drugs. Here we have a chance to make a much bigger difference than we can with illegal drugs. We still are creating the demand problem. This is a country that accounts for 25 percent of all the wealth in the world. It is a country that perhaps buys a huge volume of illegal timber from around the world. Well, we can stop that. This is not a drug addiction, this is a business practice, and it is a practice we can stop according to the laws of this country. When we stop it, we will make an enormous difference for our country and for the other countries."

Established that at least one Republican US Senator understands that the war on drugs has no chance of ever succeeding. "[T]here is a big demand for cocaine here. So no matter what we do in the other countries, the cocaine still keeps coming in." But the reason he offers for the demand is suggestive at least that attempts to eliminate demand can have limited impact at best: "[W]e are a big, rich country." People buy drugs, or some people do, because they can afford them. That's not likely to change anytime soon. And ending the poverty that plagues parts of our population -- the usual solution offered from the liberal end of the spectrum -- isn't going to end the drug problem either. Because more wealth to an extent means more drug use too, though poverty can increase the harm the drugs end up causing. Alexander didn't directly say that drugs are here to stay, but he did say that "[h]ere we have a chance to make a much bigger difference than we can with illegal drugs." And to me that statement implies that there are limits to what we can do with the demand as well.

So what is the logical next link in this chain of logic? If we can't stop drug use, the question then becomes, how best do we live with it? As Dr. Elders pointed out 14 years ago this month, prohibition of drugs causes crime. To me an approach to living with drug use that causes crime makes no sense. But while I know that many US leaders understand this (based on what Elders has reported about the aftermath of the event), they seem to mostly be unwilling to say so out loud.

That needs to change -- leadership doesn't always mean saying what's popular. A discussion of drugs and crime and violence that does not address the consequences of prohibition is an incomplete conversation. We who understand this need to stand up and demand a serious debate. The loss each day to our safety, our liberties, to the lives of hapless individuals whom the drug war has hit the hardest, is just too great to allow a continued whitewash.

Hemp On the Menu in Bismarck, North Dakota

Bismarck's Bistro restaurant is known for its fine, grass-fed North Dakota beef and fine wines, but the menu last night included a tasty garden salad with hemp oil dressing. Hemp isn't usually on the menu--at least so far--but the folks at the Bistro added it in honor of the plaintiffs in a case that is being heard at the federal courthouse here this morning. In a little less than an hour, North Dakota farmers Wayne Hauge and Roger Munson, who is also a state senator, and their attorneys, will be in federal court to argue motions in their case against the DEA for refusing to act on their applications to grow hemp. The farmers have the support of the state government, which, in the face of DEA intransigence, has acted to get the DEA out of the way, as well as the hemp industry, some of whose representatives were at the dinner table at the Bistro last night. The attorneys told me last night the most likely outcome of today's hearings is that the judge will not rule immediately, but take the motions under consideration with a ruling to come shortly. The government will ask for a dismissal, but the hemp attorneys think that's unlikely. The hearing will last until about noon, then there will be a post-hearing press availability, which I will attend before heading back to central South Dakota. Yesterday, on the way up here, my gas mileage sucked as I fought bitter winds out of the northwest. Local TV news reported gusts of 74 mph yesterday. The wind is still blowing, but at least this afternoon it'll be at my back as I scoot across the lonely prairies. Look for a feature article on the hemp hearing on Friday.
Bismarck, ND
United States

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