Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Menominee Indian Tribe of Wisconsin v. Drug Enforcement Administration

United States District Court, E.D. Wisconsin

May 23, 2016

MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff,
v.
DRUG ENFORCEMENT ADMINISTRATION and UNITED STATES DEPARTMENT OF JUSTICE, Defendants.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge

         The 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.

         Before 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.

         BACKGROUND

         Section 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).

         In May 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)).

         The 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. ¶ 72-74.

         On 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.[1]

         On 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.

         LEGAL STANDARD

         A 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 (1992)).

         To 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).

         Finally, 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).

         ANALYSIS

         I. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.