NH Hemp Council v. Constantine, DEA CV-98-280-JD 10/11/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

New Hampshire Hemp Council, Inc., et al.

v. Civil No. 98-280-JD

Thomas A. Constantine, Admin., Drug Enforcement Administration

O R D E R

The plaintiffs, Derek Owen and the New Hampshire Hemp

Council, brought this action against the defendant, Thomas

Constantine, the Administrator of the United States Drug

Enforcement Agency ("DEA"), pursuant to the Administrative

Procedure Act,

and § 703, asserting that the

defendant exceeded its statutory authority under the

Comprehensive Drug Abuse Prevention and Control Act and

unlawfully violated their constitutional rights. Before the

court now is the plaintiffs' objection to the Report and

Recommendation of Magistrate Judge James R. Muirhead which

recommended that the plaintiffs' motion for a temporary

restraining order and preliminary injunction be denied and the

case be dismissed for lack of standing (document no. 15). Background1

Plaintiff Owen is an established New Hampshire agricultural

producer who currently grows a wide range of commodities. The

New Hampshire Hemp Council is a non-profit corporation. Owen, in

cooperation with the New Hampshire Hemp Council, seeks to grow

hemp on his farm as an agricultural commodity and to demonstrate

hemp's value in contributing to improved soil productivity and

sustainable local agriculture.

Owen is also a New Hampshire State Representative. In the

1998 New Hampshire legislative session, Owen co-sponsored a bill

entitled "An act permitting the development of an industrial hemp

industry in New Hampshire and continually appropriating a special

fund." See Compl. at 7. The bill would have established a state

system for licensing and inspecting hemp growing operations.

Although the bill was recommended for passage in the legislature

by the Committee on Environment and Agriculture of the New

Hampshire House of Representatives, the full House of

Representatives defeated the bill with a 175-164 vote.

On February 3, 1998, during consideration of the bill, DEA

Special Agent George Festa testified before the Committee that

1The facts related herein represent the findings of the court for the purposes of the temporary restraining order and preliminary injunction.

2 the DEA's interpretation of federal law did not recognize a

distinction between hemp and marihuana and criminalized both of

them. Therefore, the proposed state legislation would conflict

with federal legislation, and the DEA would treat industrial hemp

cultivation as a federal offense. These statements were

allegedly a cause of the bill's failure in the New Hampshire

House of Representatives.

The plaintiffs assert that the DEA has exceeded its

statutory authority in declaring hemp manufacture and distribu­

tion illegal and in threatening prosecution for engaging in such

activities under the Comprehensive Drug Abuse Prevention and

Control Act. See

- § 966 (West 1981) ("1970

Act"). They argue that these actions violated their Fifth

Amendment rights and that the DEA agent's testimony before the

Committee violated their First Amendment rights. Ultimately the

plaintiffs seek, inter alia, a permanent injunction prohibiting

the DEA from prosecuting them for hemp cultivation, and a

declaration of hemp's legality.

On May 2, 1998, the plaintiffs filed a motion for a

temporary restraining order and preliminary injunction, which was

opposed by the defendant. The motion was referred to Magistrate

Judge James R. Muirhead pursuant to

(b)(1)(B).

A hearing before the Magistrate followed and his report and

3 recommendation was issued on June 9, 1998. The magistrate

recommended dismissal of the plaintiffs' action, finding that the

plaintiffs lacked standing. The magistrate reasoned that because

the plaintiffs could not grow hemp legally in New Hampshire under

state law, the defendant's allegedly erroneous interpretation of

federal law and unlawful threat of prosecution caused no injury

to the plaintiffs.

In the event the plaintiffs were found to have standing, the

magistrate also considered the merits of the plaintiffs' motion

for a temporary restraining order and preliminary injunction. In

evaluating the four factors that a court must weigh in

considering a preliminary injunction, that is, the likelihood of

success on the merits, the potential for irreparable harm, the

balance of eguities, and the public interest, the Magistrate

found the plaintiffs' motion should not be granted. First, the

plaintiffs were unlikely to succeed on the merits of the claim as

Congress had spoken clearly on the issue and intended to

criminalize hemp. Second, because the plaintiffs do not grow

hemp, nor have they ever grown hemp, and because New Hampshire

law criminalizes hemp independently of federal law, the status

guo was not likely to be changed by the defendant's actions and

there was no risk of irreparable harm. Finally, the magistrate

determined that while the public interest favored no party

4 clearly, equity favored the defendant since distinguishing

between immature hemp and marihuana plants is difficult and the

DEA's efforts to enforce the nation's drug laws would be

frustrated. The plaintiffs filed their objections to the

magistrate's report on June 19, 1998.

Discussion

After a party makes a timely written objection to a

magistrate's report, the district court must review the matter de

novo. See Northinqton v. Marin,

(10th Cir.

1996). "The district court must consider the actual testimony or

other evidence in the record and not merely review the

magistrate's report and recommendation."

As discussed above, Owen, in cooperation with the Hemp

Council, intends to cultivate hemp for industrial purposes and

thereby demonstrate its usefulness as a valuable rotational crop.

The plaintiffs therefore seek an injunction prohibiting the DEA

from prosecuting persons manufacturing and distributing hemp, as

well as a declaratory judgment, in furtherance of their intention

to grow hemp, finding hemp cultivation legal and requiring

prosecutors to establish in criminal cases, when appropriate,

that the substance at issue is marihuana and not hemp.

In support of their action, the plaintiffs assert that

5 Congress only sought to criminalize, inter alia, the manufacture

and possession of psychoactive Cannabis sativa L., which the

plaintiffs refer to as marihuana, as opposed to the allegedly

non-psychoactive Cannabis sativa L., which they refer to as hemp.

The plaintiffs argue that the defendant's interpretation of the

statute as proscribing the cultivation and possession of hemp is

in error. Conseguently, the defendant's actions declaring hemp

cultivation illegal and threatening prosecution for such

cultivation are allegedly beyond its statutory authorization and

unlawful. The defendant responded, in part, that the plaintiffs

lack standing to bring this action and challenged the injury that

the plaintiffs allegedly incurred at the defendant's hands along

with the relief the plaintiffs sought.

A. Standing

Article III of the Constitution limits the jurisdiction of

the federal courts to actual "cases" or "controversies." One

such "case-or-controversy" doctrine limiting the power of the

federal courts is the reguirement that a litigant have

"standing." See Allen v. Wright,

(1984). The

standing reguirement "has a core component derived directly from

the Constitution. A plaintiff must allege personal injury fairly

traceable to the defendant's allegedly unlawful conduct and

6 likely to be redressed by the requested relief."

.

"[T]he plaintiff must have suffered an injury-in-fact -an

invasion of a legally protected interest which is (a) concrete

and particularized . . . and (b) actual or imminent, not

conjectural or hypothetical." Lujan v. Defenders of Wildlife,

(1992) (citations and quotations omitted). The

plaintiff "must allege specific, concrete facts demonstrating

that the challenged practices harm him, and that he personally

would benefit in a tangible way from the court's intervention."

Warth v. Seldin,

(1975) . "[RJelief from the

injury must be 'likely' to follow from a favorable decision."

Allen,

(citations omitted). In determining

redressability, the court must "examine[] the causal connection

between the alleged injury and the judicial relief requested."

at 753 n .19.

I. The Status of Hemp Under New Hampshire Law

The magistrate found that the plaintiffs have no standing to

sue because irrespective of the defendant's interpretation of the

1970 Act, which is what the plaintiffs have put at issue in this

case, the plaintiffs are prohibited from growing hemp under New

Hampshire law. The court agrees with the magistrate that New

Hampshire forbids the manufacture, possession, control, sale,

7 purchase, or transport of any controlled drug. See

-B:2(I) (1995) ("RSA"). Under New Hampshire law,

controlled drugs are defined as "any drug or substance, or

immediate precursor, which is scheduled pursuant to RSA 318-B:1-

a." See RSA § 318-B:1(VI) (1995). The schedule establishes a

list of controlled drugs by reference to federal administrative

law, see State v. Cartier,

(1990); see also,

:8, and thereby incorporates

(d)(19) (1998), which lists marihuana as a schedule I

controlled substance.

(1998) refers to

for the definition of marihuana, which states that

marihuana is :

all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

(16) (West Supp. 1998). Therefore, if the

federal definition encompasses hemp, then hemp is illegal under

New Hampshire law.

The first step in statutory construction is application of the plain meaning rule. See, e.g.. Catholic Social Servs. Inc.

v. Meese,

(E.D. Cal. 1987). "If

the statutory language is clear and unambiguous, 'that language

must ordinarily be regarded as conclusive.'"

(guoting North

Dakota v. United States,

(1983) (internal

guotations and citations omitted)). A court may then look to

legislative history "to determine only whether there is 'clearly

expressed legislative intention' contrary to that language, which

would reguire [the court] to guestion the strong presumption that

Congress expresses its intent through the language it chooses."

INS v. Cardozo-Fonseca,

, 432 n.12 (1987) (citations

omitted).

Marihuana is defined as "all parts of the plant Cannabis

sativa L. . . ."

(16). Therefore, anything

that is part of the plant Cannabis sativa L. and that is not

expressly excluded in the statutory definition is, for purposes

of the 1970 Act, marihuana and a controlled substance. That both

hemp and marihuana are subsumed within the genus Cannabis sativa

L. is evident from the testimony of the plaintiffs' expert

witness Dr. Paul Mahlberg, a botanist licensed by the DEA to grow

and study the genus Cannabis:

The Court: So from a biological point of view are they different plants that are part of the same fam - The Witness: Biologically? At the present time taxonomically or in terms of classifying these plants they are placed together. This has been a case that has gone into the literature for guite some time.

Correctly they are placed in the same genus called cannabis sativa. In the past there were separations between different forms of this plant; that is, back in the 1930s and well before that. But legally, as you know now, we've only been dealing with one so-called species of the plant, although there are various numerous strains.

The Court Okay. If Congress wanted to, would they be able to adopt a scientifically recognized distinction between the two plants so as to legalize one and keep the other illegal?

The Witness I can't, I can't hear that very well.

The Court: Could you repeat the guestion for him?

[Plaintiffs' Counsel]: Yes. If Congress wanted to, could it adopt a scientifically acceptable distinction in the law between the plants?

The Witness: Yes. Congress could do that, very much as they have done in Europe, by identifying and distinguishing between the forms on the basis of their THC content.

[Defense Counsel]: Is a hemp plant a cannabis sativa plant?

The Witness: Yes.

10 [Plaintiffs' Counsel]: Dr. Mahlberg, would a distinction between marijuana and hemp in your opinion be a scientific distinction?

The Witness: Be a what difference?

[Plaintiffs' Counsel]: Be a scientific distinction.

The Witness: No, it would not be a scientific distinction in the sense of species designation. However, there are individuals in Europe more so than over here that recognize differences at the species level between forms. So that would be a typical- at the present time [sic]. It's simply because we here in this country have numerous litigation cases on cannabis and on whether it is or is not marijuana, whereas in Europe that's not the case. So the attitude is different over there.

[Plaintiffs' Counsel]: Dr. Mahlberg, let me try to clarify the guestion, or perhaps phrase it differently. The complaint refers to marijuana and hemp as being varieties within the same species. And you indicated that the complaint was accurate. Are you then saying that the distinction between varieties is not in your mind a taxonomic distinction?

The Witness: Well, it's based on the chemical composition. And some view this as taxonomically valid, but this does not mean that it's a different species. But there are, there are subspecific forms, sometimes they're called strains, as I call them, others may call them some

11 other designation, subspecies, for example, but they would state there the characteristic cannabinoid content. Now, over here in this country, as I mentioned before, we are still and seem to be continuously calling it a single species, cannabis sativa.

Transcript of Hearing for Preliminary Injunction, at 46-50 (May

22, 1998) ("Tr."). The court finds that the testimony of the

plaintiffs' expert witness establishes that while marihuana and

hemp may be two different subspecies or strains of Cannabis

sativa L., they are both of the genus Cannabis sativa L. The

court concludes, therefore, that based on the record in this

case, they are both "marihuana" as defined in the 1970 Act.2 It

follows from this conclusion that hemp is a controlled substance

under New Hampshire law.3

In addition, the court finds the language of 21 U.S.C.A.

2Io the extent that the plaintiffs guestion Congress's wisdom or rationale in selecting what to proscribe, the plaintiffs must present their arguments to that legislative forum.

3Ihe plaintiffs argue that the legality of hemp cultivation under New Hampshire law can only be determined upon the occurrence of three events: 1) a discretionary state prosecutorial decision to charge a person growing hemp with cultivating marihuana; 2) a unanimous state jury verdict that the person did intend to manufacture marihuana; and 3) the exhaustion of all appeals and collateral attacks rendering the conviction final. However, inherent in the court's duty to determine its own jurisdiction is its power to interpret laws that are relevant to the guestion of jurisdiction.

12 § 802(16) unambiguous and the intent of Congress clear.4

Contrary to the plaintiffs' assertion. Congress's use of the word

"plant" does not create any ambiguity. As the plaintiffs

concede, "plant" may refer to a genus, a species, or any of the

varieties of subspecies. See Pis.' Objection to Report and

Recommendation of the Magistrate Judge at 2. However, "plant" is

followed and gualified by "Cannabis sativa L.," which the

plaintiffs concede and testimony establishes is the name of a

genus. See id.; see also, Tr. at 46. Within that genus and

pursuant to taxonomic hierarchy fall both hemp and marihuana,

resolving any potential ambiguity. See Tr. at 46-50.

The plaintiffs alternatively claim ambiguity in the

statutory definition because it excepts the mature stalk of the

plant from other prohibited parts, and manufacture of the mature

stalks is technically unfeasible without manufacturing the entire

plant. The court finds the argument to be meritless. New

Hampshire law does prohibit the manufacture of controlled

substances, as well as the purchase, dispensation, and possession

of them.5 See RSA § 318-B:2 (1997). However, given the

legislative history does not evince a "clearly expressed legislative intention" contrary to the plain meaning of the statute. See Cardozo-Fonseca,

n.12.

5The plaintiffs make this argument under federal law in arguing their likelihood of success on the merits for the temporary restraining order and preliminary injunction. See

13 generalized nature of § 318-B:2, and the intention to establish

proscribed acts for a broad range of controlled substances, the

apparent incongruity relied upon by the plaintiffs is of little

moment. The exceptions in the definition are not rendered

meaningless as the purchase or possession of the mature stalk of

the plant is permissible, and the stalk can be obtained through

other means than its manufacture, such as through importation.6

II. Injury and Redress

As discussed above, one essential element of standing is

that the plaintiffs allege an actual injury-in-fact - an invasion

of a legally protected interest - that is neither hypothetical

nor conjectural, but that is tangible and concrete. See,

e.g., Lui an, 555 U.S. at 560. The plaintiffs' alleged injury is

the infringement of their use and enjoyment of Owen's land by a

Plaintiffs' Objection to Report and Recommendation of the Magistrate Judge at 15;

(a) (proscribing the manufacture of controlled substances). The court, however, addresses the argument under New Hampshire law in determining the plaintiffs' standing. See RSA § 318-B:2. New Hampshire and federal law both proscribe the manufacture of controlled substances and the argument is readily transferable.

6The court also finds the plaintiffs' lenity argument to be unpersuasive. The lenity rule may serve only to resolve ambiguity, not to create ambiguity. See, e.g., Albernaz v. United States,

(1981) (rule of lenity inapplicable where statute is unambiguous).

14 supposedly unlawful federal ban on hemp cultivation. However, as

determined above, hemp is a controlled substance under New

Hampshire law, and the cultivation of it is consequently

proscribed. Therefore, since the plaintiffs have no legally

protected interest in growing hemp because such activity is

proscribed by state law, the defendant's allegedly unlawful

conduct does not cause them an injury-in-fact.

The court also finds that the plaintiffs lack standing

because the court could not effectively redress the alleged

injury. The plaintiffs are still precluded from cultivating hemp

by state law, the meaning and validity of which has not been

challenged by the plaintiffs. In this regard, the case at hand

is analogous to Harp Advertising v. Village of Chicago Ridge.

See

(7th Cir. 1993). In Harp, the plaintiff

advertising firm brought suit under

asserting,

among other things, that certain zoning ordinances which

precluded off-premise signs violated its First Amendment rights.

See

. Meanwhile, a second ordinance, the validity of

which was not at issue in the action, precluded signs that were

greater than 200 square feet. The plaintiff sought to erect a

sign that was 1200 square feet. The Seventh Circuit found that

the plaintiff lacked standing to bring the action challenging the

on-premise sign ordinance "because [the plaintiff] could not put

15 up its sign even if it achieved total victory in this

litigation."

. Similarly, in this case the

plaintiffs could not grow hemp in New Hampshire even if they were

successful in this litigation. The plaintiffs therefore lack

standing to bring their Fifth Amendment claim.

B. First Amendment Claim

The plaintiffs have also asserted that the defendant

violated their First Amendment rights by allegedly mis-stating

the law before the Agriculture and Environment Committee.

"[F]ederal courts are without power to entertain claims otherwise

within their jurisdiction if they are 'so attenuated and

unsubstantial as to be absolutely devoid of merit.'" Hagans v.

Lavine,

(1974) (guoting Newburvoort Water Co.

v. Newburvport,

(1904)). Pursuant to this

principle, the substantiality doctrine "places an obligation on

the district court to determine its jurisdiction" that must be

raised sua sponte if necessary. See Ricketts v. Midwest Nat.

Bank,

(7th Cir. 1989). It reguires

dismissal of an alleged federal claim that "'clearly appears to

be immaterial and solely made for the purpose of obtaining

jurisdiction or where such a claim is wholly insubstantial or

frivolous.'"

(guoting Bell v. Hood,

,

16 681-82 (1942). The plaintiffs have identified no legal authority

remotely supporting their novel argument, nor is the court aware

of any. The court finds that the claim is frivolous and warrants

dismissal under the substantiality doctrine.

Conclusion

For the reasons discussed above, the court denies the

plaintiffs' motion for a temporary restraining order and

preliminary injunction. The court further concludes that the

plaintiffs lack standing to bring their Fifth Amendment claim,

and that their First Amendment claim is wholly insubstantial.

Case dismissed. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

September 11, 1998

cc: Gordon R. Blakeney Jr,. Esguire Gretchen Leah Witt, Esguire Arthur R. Goldberg, Esguire

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