Attorney Joe Sandler told a panel of the 8th U.S. Circuit Court of Appeals on Wednesday that his clients' lawsuit against the federal Drug Enforcement Administration should move forward so that the farmers might have a chance to use their state permits to grow hemp for seeds and oil. The lawsuit was dismissed in U.S. District Court.
At the heart of the dispute is whether the farmers - state Rep. David Monson and Wayne Hauge - can cultivate hemp under North Dakota laws without violating the federal Controlled Substances Act.
Hemp is related to the illegal drug marijuana, and under the federal law, parts of an industrial hemp plant are considered controlled substances.
Sandler argued that while hemp plants might fall under the federal law, the law doesn't apply because the parts of the plant that could be considered a drug would never leave the farms. He also underlined the differences between marijuana and the crop the farmers want to grow, saying the judge who dismissed the case incorrectly treated marijuana and hemp as the same thing.
Industrial hemp is legally grown in several countries, including Canada, and the U.S. imports many products made from hemp seed, oil and fiber. The plant has much lower concentrations of the psychoactive chemical THC found in marijuana plants.
Melissa Patterson, a Justice Department attorney, told the appeals panel that Congress does have the power to regulate the crop in this case and that Congress has determined through the Controlled Substances Act that the plants, whether used for drugs or not, should be restricted.
Patterson also argued that the farmers must, as directed by Congress, first go through a registration process with the DEA to grow hemp rather than taking the issue to court. The farmers' registration request with the DEA is still pending.
Monson said he has lost out on the opportunity to rotate hemp with his wheat and barley crops that have been hit hard by blight and scab diseases in recent years. He said he and Hauge will wait for their case to run its course before planting hemp.
"I don't want to risk losing my farm and going to jail," Monson said.
The three-judge appeals panel isn't expected to issue a written decision on the matter for several months.