United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Menominee Indian Tribe of Wisconsin filed this declaratory
action against the United States Department of Justice and
its Drug Enforcement Administration (hereinafter “the
Government”) after federal agents raided reservation
lands and seized a crop of hemp grown pursuant to a 2015
tribal ordinance legalizing the cultivation of hemp. The
Tribe seeks a judgment declaring that its cultivation of
industrial hemp for agricultural or academic research
purposes in connection with the College of Menominee Nation
is lawful under a 2014 federal law, 7 U.S.C. § 5940,
which created an exemption to the Controlled Substances Act
for the cultivation of hemp in certain circumstances.
the Court are the Government’s motion to dismiss and
the Tribe’s motion for summary judgment. For the
reasons below, the Government’s motion will be granted
and the Tribe’s motion will be denied.
7606 of the Agricultural Act of 2014, entitled
“Legitimacy of industrial hemp research, ”
created the following provision:
Notwithstanding the Controlled Substances Act (21 U.S.C. 801
et seq.), the Safe and Drug-Free Schools and Communities Act
(20 U.S.C. 7101 et seq.), chapter 81 of Title 41, or any
other Federal law, an institution of higher education (as
defined in section 1001 of Title 20) or a State department of
agriculture may grow or cultivate industrial hemp if--
(1) the industrial hemp is grown or cultivated for purposes
of research conducted under an agricultural pilot program or
other agricultural or academic research; and
(2) the growing or cultivating of industrial hemp is allowed
under the laws of the State in which such institution of
higher education or State department of agriculture is
located and such research occurs.
Pub. L. No. 113-79, § 7606, 128 Stat. 649, 912-13,
codified at 7 U.S.C. § 5940(a). The law defines
“industrial hemp” as “the plant Cannabis
sativa L. and any part of such plant, whether growing or not,
with a delta-9 tetrahydrocannabinol [THC] concentration of
not more than 0.3 percent on a dry weight basis.” 7
U.S.C. § 5940(b)(2). The Controlled Substances Act
defines marijuana, a Schedule I controlled substance, as all
parts of the Cannabis sativa L. plant regardless of THC
content, but excludes the mature stalks of such plant, fiber
produced from such stalks, oil or cake made from the seeds of
such plant, other compounds made of such mature stalks,
fiber, oil, or cake, or the sterilized seed of such plant
which is incapable of germination. 21 U.S.C. § 802(16).
Thus, before the 2014 statute above was enacted,
“hemp” products made from the stalk, fiber,
non-viable seed, and oil were legal to import into the United
States but illegal to grow. See Monson v. Drug
Enforcement Admin., 589 F.3d 952, 962 (8th Cir. 2009).
2015, the Menominee Indian Tribe of Wisconsin, a
federally-recognized Indian tribe, passed a tribal ordinance
legalizing the cultivation of industrial hemp on the
Menominee Reservation by licensees of the Tribe. Hemp has
known uses in textiles, foods, papers, body care products,
detergents, plastics and building materials. According to the
Tribe, hemp is one of the earliest-known domesticated plants,
with a long history of cultivation and use around the world,
including cultivation by Native American tribes before the
arrival of European settlers. President George Washington is
said to have heralded the plant, telling a gardener,
“Make the most you can of the Indian Hemp seed and sow
it everywhere.” Thomas J. Ballanco, The Colorado
Hemp Production Act of 1995: Farms and Forests Without
Marijuana, 66 U. Colo. L. Rev. 1165, 1165 & n.1
(1995) (citing 1794 note to gardener reprinted in Chris
Conrad, Hemp: Lifeline to the Future 305 (1993)).
Tribe’s 2015 ordinance defines industrial hemp as all
parts of the genera Cannabis that contain a THC concentration
of 0.3 percent or less by weight, and the law creates a
licensing procedure under which license applicants must
demonstrate they are capable of growing industrial hemp and
have adopted methods to ensure its safe production. Compl.
¶¶ 56-59, ECF No. 1. The Tribe entered into an
agreement with the College of the Menominee Nation to
research the viability of industrial hemp. The Tribe
thereafter issued a license to the College, which planted an
industrial hemp crop on tribal lands for research purposes.
According to the complaint, the Tribe cooperated with the DOJ
and DEA to secure the testing of industrial hemp and ensure
that THC levels did not exceed 0.3 percent, and agreed to
destroy any industrial hemp that tested above this limit, as
such hemp would be in violation of tribal law. Id.
October 23, 2015, federal agents entered the Menominee
Reservation, and seized and destroyed the Tribe’s
industrial hemp crop. Id. ¶ 75. The complaint
states that the raid was conducted despite no known THC test
exceeding 0.3 percent. Id.
November 18, 2015, the Tribe filed this action for
declaratory relief. The Tribe seeks a declaration from this
Court that its cultivation of industrial hemp for
agricultural or academic research purposes in conjunction
with the College of Menominee Nation is lawful under 7 U.S.C.
§ 5940. Specifically, the complaint includes three
“claims” for declaratory relief corresponding to
the statutory requirements for the exception: (1) that in
passing a tribal law legalizing the cultivation of industrial
hemp on the Menominee Reservation, the Tribe acted as a
“State, ” as required under § 5940; or
alternatively (2) that the cannabis laws of the State of
Wisconsin have no application to industrial hemp cultivation
by the Tribe within the exterior boundaries of the Menominee
Reservation, and that the cultivation of industrial hemp on
the Menominee Reservation is therefore “allowed”
under the laws of the State of Wisconsin, as required under
§ 5940; and (3) that the College of Menominee Nation is
an “institution of higher education” under §
5940. As explained below, the Government responded to the
complaint by filing a motion to dismiss on numerous grounds.
The Tribe responded with a motion for summary judgment. A
hearing on the motions was held on May 13, 2016.
motion to dismiss under Rule 12(b)(1) of the Federal Rules of
Civil Procedure challenges the court’s subject matter
jurisdiction. Federal courts are courts of limited
jurisdiction and can only hear “Cases” and
“Controversies” as authorized by Article III of
the Constitution. Flast v. Cohen, 392 U.S. 83, 94
(1968). The plaintiff bears the burden of proving that
subject matter jurisdiction exists. Lee v. City of
Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The court “construe[s] the
complaint in the light most favorable to the plaintiffs,
accepting as true all well-pled facts alleged, taking
judicial notice of matters within the public record, and
drawing all reasonable inferences in the plaintiffs’
favor.” Adkins v. VIN Recycling, Inc., 644
F.3d 483, 492-93 (7th Cir. 2011).
summary judgment under Rule 56 is proper “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). In deciding a motion
for summary judgment, a court views the facts in the light
most favorable to the non-moving party. Crull v.
Sunderman, 384 F.3d 453, 460 (7th Cir. 2004).