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

Submitted by Phillip Smith on (Issue #510)
Consequences of Prohibition
Drug War Issues
Politics & Advocacy

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.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

Hi, here are some interesting and true links, worth reading.

So, [email protected] sez, what will we do, if we had only enuf diesel fuel, to run farm equipment, and ship foodstuffs, to citizens, and fight wars abroad,,,, stay home, eat too much, and smoke pot?
Hardly, people would walk to work, and learn why we should try to be responsible, for Americas energy needs.
Action, not endless talk, Do something. Jerry

Fri, 11/16/2007 - 2:14pm Permalink
Anonymous (not verified)

My name is Donna, and I am 64 years old. I do not understand the DEA. Hemp has been used for thousands of years. George Washington grew it and Benjamin Franklin had the first hemp paper mill. Our Constitution is written on Hemp paper. Sails were made of it and the canvas on covered wagons were made of hemp also. Lamp oil, gear lubricant, fabric and so on and so forth. If you have an acre of trees and an acre of hemp, the acre of hemp will make four times the amount of paper than the acre of trees. It will take one year to yeild another hemp crop, but it will take twenty years to grow the same acre of trees to harvest. Henry Ford made a plastic from it that was four times stronger than steel, and he made a car with the plastic. A safer car. Read Popular Mechanics December 1941 about Henry Fords car, and be amazed. Then read the February 1938 issue about the NEW BILLION-DOLLAR CROP.Our nation was ready to progress and florish, but it would have hurt the already existing empire industries, so they had to remove hemp from our nation altogeather. Hemp has always been hemp, marijuana was a spanish word for hemp, so they used it and scare tatics to frighten the nation, saying a killer weed from Mexico called Marijuana was doing us harm. They did not tell anyone that it really was our nations important hemp plant, and when they got it through Congress as Marijuana, they hurt the Hemp nation, and won favor with the elite industries. They, the DEA renamed the plant, and they know that if it were ever legalized there would be at least 35,000 new products made from it on the market within six months. Everything from clean buring fuel, clothing, building materials, plastics, paper, oil, canvas, and the list goes on and on, and all of this from just ONE plant named "HEMP" Our "Creator" gave us this fantastic plant for a reason. No other plant on this earth can be used to make and create so much, with such a variety of uses. This plant is God's (our Creator's) precious gift to ALL humankind on this Earth. The DEA is not God, and has no right to take from humankind God's gift. They are not GOD, do not kneel down unto them, take back what God has lovinly given to us all. Read, learn,educate yourself, pass it on, and teach others. You cannot get stoned on Induatrial Hemp, even if you tried to smoke a whole field, the DEA is lying to all of us, and believe me Big Industries are paying them well to keep it illegal, for products made of Hemp would help with pollution, save the air, clean the waters, and maybe help save our Earth. Oh one more note. Hemp planted on hillsides prone to mudslides, will help prevent mudslides through the root system. It holds the earth togeather so that the mud does not slide down upon your homes or towns. It could save property and lives. The possibilities within this fantastic plant is endless, and they have made criminals of so many who in reality are not criminals at all, for it is a crimeless law, and no criminal act is done to anyone. Where is the CRIME? God Bless us All! God protect us all!

Fri, 11/16/2007 - 6:36pm Permalink
Anonymous (not verified)

If you want to be control freaks about something, do something about the fetal ALCOHOL problem, or drunk driving, or drunks abusing women and children. Those problems might be worth getting hysterical about.

Sat, 11/17/2007 - 1:42am Permalink
Anonymous (not verified)

"It's still marijuana" is what the Fed said. WRONG! It's all cannabis. The "M" word is what the FED covers all with. Semantic confusion is what the FED relies upon. There are only two countries that refer to cannabis as the "M" substance, US and MEX. Every other country calls it by different names.I think Donna has most of it covered nicely. I also think that, to call the DEA a criminal organization , is not semantics. A classic case of, if you know you can't win , stall. Hopefully the judge is rightminded and not biased.

Sat, 11/17/2007 - 9:06am Permalink
Anonymous (not verified)

The same interests who had hemp banned back in the 30's , are still worried that this versatile plant might eat into their profits if it ever were to be grown again. Not only that, but now the big agriculture corporations, who will benefit from the independent family farmers going belly up, are not interested in any of the farmers who remain, benefitting from growing hemp.
The Federal govt. is going to fight this tooth and nail, because their corporate masters will insist on it.

Sun, 06/01/2008 - 9:57pm Permalink
Anonymous (not verified)

Politics, thats what it is. The DEA thinks that if growing hemp is legalized then the issue of marjiuana growth and cultivation (ie for smoking ie NOT hemp) will be put in a more public spotlight. People will see fields of legal marijuana and start questioning the DEAs other practices and maybe even the legitimacy of having a drug ban/war. The DEA feels that if you give an inch it's really a mile. But clearly this is just for industrial production and has no use as a drug. Yet if they allow cannabis to be grown on US soils they feel the "war" is already lost. They see it as the equivalent of letting a 5th column group into the country. Obviously this is not the case but everyone knows the DEA is just stalling so they wont have to confront the difference of what the DEA wants and what the people want. Everyone knows there's lots of interest in hemp manufacture but clearly the DEA thinks they know better than we do. It's like having a nationwide mother telling you what you should do or not do.
There's also the issue of undercutting the forestry industry, as hemp is infinitely better for the environment that logging. Not to mention its high turnaround rate and little need for herbicides/pesticides. A tree can take 50 years to grow back. Hemp can grow back in a year.
And why aren't they suing the alcohol industry? Certainly alcohol should be illegal given the amount of deaths and drunk driving accidents.

Wed, 07/01/2009 - 6:24pm Permalink

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