Apothio, LLC v. Kern Cnty.
| Citation | 599 F.Supp.3d 983 |
| Decision Date | 22 April 2022 |
| Docket Number | 1:20-cv-00522-JLT-BAK (EPG) |
| Parties | APOTHIO, LLC, Plaintiff, v. KERN COUNTY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Joseph Delich, PHV, Pro Hac Vice, Kyle William Roche, PHV, Pro Hac Vice, Richard R. Cipolla, PHV, Pro Hac Vice, Roche Cyrulnik Freedman LLP, New York, NY, Katherine Ann Eskovitz, Roche Cyrulnik Freedman LLP, Santa Monica, CA, for Plaintiff.
Andrew C. Thomson, Kathleen Rivera, Phillip Thomas Jenkins, Office of County Counsel, County of Kern, Bakersfield, CA, for Defendants Kern County, Kern County Sheriff's Office, Donny Youngblood, Joshua Nicholson.
Bruce D. McGagin, Office of the Attorney General, Sacramento, CA, Ethan Allen Turner, California Department of Justice, Sacramento, CA, Kelly Theodore Smith, California Department of Justice Office of the Attorney General, Sacramento, CA, Stacey L. Roberts, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Defendant California Department of Fish and Wildlife.
Ethan Allen Turner, California Department of Justice, Sacramento, CA, Kelly Theodore Smith, California Department of Justice Office of the Attorney General, Sacramento, CA, Stacey L. Roberts, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Defendant Charlton H. Bonham.
ORDER GRANTING STATE DEFENDANTS’ MOTION TO DISMISS ON RULE 8 GROUNDS AND DECLINING TO ADDRESS THE REMAINDER OF STATE DEFENDANTS’ MOTION;
GRANTING IN PART AND DENYING IN PART COUNTY DEFENDANTS’ MOTION TO DISMISS; AND
DENYING COUNTY DEFENDANTS’ MOTION TO STRIKE
This case concerns the seizure and destruction in 2019 of hundreds of acres of hemp plants cultivated by Apothio, LLC in Kern County. After its hemp was destroyed pursuant to a warrant, Plaintiff filed civil rights and tort claims against Kern County, Kern County Sheriff's Office, Kern County Sheriff Donny Youngblood, Sergeant Joshua Nicholson's (collectively, "County Defendants"), and Charlton H. Bonham and the California Department of Fish and Wildlife ("DFW") (collectively, "State Defendants").
County Defendants have filed a motion to strike (Doc. 19) and motion to dismiss (Doc. 24). State Defendants filed motions to dismiss and for a more definite statement. (Doc. 18.) After State Defendants filed copies of two relevant search warrants in a subsequent filing, (Doc. 66), Plaintiff filed a motion for leave to file and notice of supplemental information regarding Defendants’ disclosure of the probable cause affidavits associated with those warrants. (Doc. 74.) County and State Defendants have filed notices indicating that they wish to join in each other's briefs and motions. (Docs. 36, 40, 42, 74.)
For the reasons set forth below, the Court will grant State Defendants’ motion to dismiss (Doc. 21), deny County Defendants’ motion to strike (Doc. 19), grant in part and deny in part County Defendants’ motion to dismiss (Doc. 24). The Court will also take judicial notice of the search warrants and has considered Plaintiff's notice of supplemental information (Doc. 74).
Federal law defines marijuana as "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." 21 U.S.C. § 802(16)(A). Hemp or industrial hemp is defined as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(‘THC’)] concentration of not more than 0.3 percent on a dry weight basis."1
7 U.S.C. §§ 1639o(1), 5940(a)(2) ; see 21 U.S.C. § 802(16)(B)(i). Marijuana and any part of the plant Cannabis sativa L. with a THC concentration above 0.3 percent are Schedule I controlled substances. 21 U.S.C. § 812, Schedule I, (c)(10), (17).
On February 7, 2014, the Agricultural Act of 2014 ("2014 Farm Bill") was signed into law and contained a provision entitled "Legitimacy of Industrial Hemp Research." See Pub. L. 113-79, 128 Stat. 912 § 7606 (Feb. 7, 2014) (codified at 7 U.S.C. § 5940 ). According to a "Statement of Principles" published jointly in the Federal Register by the U.S. Department of Agriculture, the Drug Enforcement Administration, and the Food and Drug Administration, that provision of the 2014 Farm Bill:
81 Fed. Reg. 53,395 (Aug. 12, 2016).
More specifically, the 2014 Farm Bill permits an "institution of higher education" or a "State department of agriculture" to "grow or cultivate industrial hemp if":
7 U.S.C § 5940(b).5
Subsequently, the Agriculture Improvement Act of 2018 ("2018 Farm Bill") was signed into law, which, in part, amended the Controlled Substances Act to remove hemp and hemp-derived products from the definition of marijuana. Pub. L. 115-334, 132 Stat. 4490 § 12619 (Dec. 20, 2018); see also 7 U.S.C. § 1639o(1) ; 21 U.S.C. § 802(16)(B)(i). The law requires the USDA to promulgate regulations and guidelines to administer a program for hemp production. Hemp production may be administered directly by the USDA or by a state or Indian tribe that has a USDA-approved plan. 7 U.S.C. §§ 1639p, 1639q. However, when a state does not have a USDA-approved plan to regulate the production of hemp, "it shall be unlawful to produce hemp in that State ... without a license issued by the Secretary [of the USDA] under subsection (b) [of § 1639q ]." 7 U.S.C. § 1639q(c)(1). It is undisputed that on the dates relevant to this case, California did not have an approved plan to regulate the production of hemp and Plaintiff did not possess a license from the USDA.
It is also undisputed that as of the dates relevant to this case, the USDA had not yet published rules regarding the issuance of licenses for hemp production. It was not until October 31, 2019—after the search and seizure in dispute in this case—that the USDA published its "interim final rule to establish the domestic hemp production program and to facilitate the production of hemp, as set forth in the 2018 Farm Bill." 84 Fed. Reg. 58,523 (Oct. 31, 2019) ; see 7 C.F.R. § 990 et seq. (2019).
On September 27, 2013, the California Industrial Hemp Farming Act ("Hemp Farming Act") was signed into law, excluding industrial hemp from the definition of marijuana, and setting forth procedures and regulations on industrial hemp production. 2013 Cal. Stat. Ch. 398 (S.B. 566). The Hemp Farming Act introduced established agricultural research institutions ("EARI"), which were first defined as "a public or private institution or organization that maintains land for agricultural research, including colleges, universities, agricultural research centers, and conservation research centers." Id. § 4. However, the Hemp Farming Act stated that "[t]his act shall not become operative unless authorized under federal law." Id. § 8(a). "If this act becomes operative, the Attorney General shall issue an opinion on the extent of that authorization under federal law and California law, the operative date of those provisions, and whether federal law imposes any limitations that are inconsistent with the provisions of this act." Id. § 8(b).
On June 6, 2014, after the 2014 Farm Bill was signed into law, the California Attorney General issued its opinion on the above issues, finding that "[f]ederal law has authorized the California Industrial Hemp Act to the extent that it permits institutions of higher education and the California Department of Food and Agriculture to grow and cultivate industrial hemp, for the purposes of agricultural or academic research, in compliance with the federal definition of industrial hemp." 13 Cal. Ops. Atty. Gen. 1102 at 2 (2014). The Attorney General noted inconsistencies between federal law and the Hemp Farming Act, specifically that federal law imposed the following limitations:
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