Federal judge denies Flandreau hemp injunction

FLANDREAU— A few weeks back the Flandreau Sioux Tribe filed suit against Secretary of Agriculture Sonny Perdue. Last week the Tribe lost an emergency motion for a preliminary injunction against the United States Department of Agriculture (USDA). The USDA had refused to sign off on the Tribe’s hemp growing operation, and having already committed critical resources to that project, and looking at a closing planting window, the Tribe wanted a Temporary Restraining Order (TRO) to proceed with hemp production until a ruling on their suit against Perdue is handed down. But Federal Judge Karen Schrier ruled against the Tribe.

Citing the recent government shutdown, the USDA asserted they had not had enough time to establish new regulations based upon changes between the 2014 Farm Bill and the 2018 Farm Bill, which approves the growing and transportation of hemp. They stated that until such changes are implemented, they did not have to comply with the mandatory 60-day response time to the submitted Tribal Plan.

On May 23, 2019 the Tribe filed a complaint in United States District Court for the State of South Dakota, to sue the Secretary of Agriculture Perdue. As the spring window for crop planting closes, the Tribe found itself between a rock and a hard place concerning hemp. Following the guidelines of the Agricultural Improvement Act of 2018, which amended the 1946 Agricultural Marketing Act (AMA), removing hemp as a controlled substance and allowing legal hemp production, the Tribe submitted a plan to grow hemp to the United States Department of Agriculture (USDA), received on March 8, 2019. Secretary of Agriculture Sonny Perdue had 60 days to approve the plan and failed to do so.

In an acknowledgement letter to the Tribe, dated April 24, 2019, Perdue’s rationale was that the USDA is required by law to approve the Tribal Plan, because it meets all the criteria, but only after the has had a chance to finalize and publish it in the Federal Register. Tribal hemp production could then proceed in the spring of 2020, as Perdue did not feel compelled by the language of the AMA (section 297B) to approve the plan within 60 days.

The Tribe asserts that the Secretary has overreached his power. In the introduction of their supporting brief for a Temporary Restraining Order (TRO) (so that they can proceed with hemp production before the crop planting window closes), the Tribe asserted: “Completely ignoring the will of Congress and the very statute it is here tasked with implementing, the USDA has violated its mandatory review deadline and attempts to assume power not delegated to it by Congress to the ongoing harm of the Tribe.”

The Tribe said they have already committed land, resources and money to this hemp growing season, and that the Tribal Plan met “the seven discrete requirements laid out by Congress.” They also point out the language states clearly that Tribes and states “shall only be required” to meet those seven steps. Perdue is not alleging they did not, only that the USDA does not have to act within the 60-day mandatory review deadline. The Tribe points out in their complaint that the words, “‘shall only be required to include’ were intentionally added by Congress to specifically limit the Secretary’s authority to impose additional requirements on states and tribes.”

The Tribe asserts “this mandatory statutory command leaves no discretion: the Secretary must approve a section 297B plan meeting the minimum conditions set by Congress no later than 60 days after receipt and only deny a plan that fails to meet these minimum conditions.” The Secretary is not asserting that the Tribal Plan failed to meet the minimum conditions.

During the time between the Secretary receiving the Tribal Plan and the present, and aside from the legal steps the Tribe took, the Tribe has not been idle. As pointed out in their TRO motion, also dated May 23, 2019: “The Tribe participated in a 2018 Farm Bill listening session on March 13, 2019. On that call, the Tribe highlighted and placed onto the record the harms it will face if USDA does not comply with the AMA…”; “The Tribe met with the USDA on March 19, 2019. During that meeting the Tribe and the USDA discussed the Tribe’s hemp production plan and the need of the Tribe to move forward under that plan.”; “On May, 13, 2019, the Tribe again met with the USDA…during that meeting the Tribe and the USDA discussed this matter and the pressing need for the Tribe to implement its plan on its territory.”; “the Tribe has subsequently and on multiple occasions communicated with USDA…”

The TRO was essential to get the crop in the ground in case the suit against Perdue is ruled in the Tribe’s favor. In the supporting brief for the TRO, the Tribe states that one of the reasons for granting the TRO is the high degree of merit in the tribal complaint, and the likely possibility the Tribe will prevail in the complaint. Judge Schrier ruled her court could not consider the merit of the suit against Perdue, which was one of the main factors why the Tribe’s injunction request was denied.

Controversy over hemp has played itself out differently on South Dakota reservations. Those reservations bordering hemp friendly states, and not surrounded by South Dakota on all sides, and have existing hemp laws in place amended to meet the required language of the 2018 Farm Bill, can theoretically grow their hemp and transport it across state friendly borders. Only the Oglala Sioux Tribe (OST) has approved hemp growing for individual enrolled members. Other tribal hemp production is being done by the given tribe. OST tribal attorneys also worked with Senator Mitch McConnell in the hemp transportation language in the 2018 Farm Bill, and are largely responsible for the wording of the hemp transportation language.

Forbes magazine reported recently that the Cannabis/Hemp market could grow by 700 percent over the next year, and be worth $2.1 billion annually. Tribes have a golden opportunity over the course of the next five years to make hundreds of millions of dollars, by not only growing hemp, but by investing in the CBD extracting, and manufacturing and distribution of hemp products.

(James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com)

 

 

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