N.H. Hemp Council Inc. v. U.S.A. Drug Enforcement

• Decision Date: 06 December 1999
• Docket Number: No. 99-1082,99-1082
• Citation: 203 F.3d 1
• Parties: (1st Cir. 2000) NEW HAMPSHIRE HEMP COUNCIL, INC. and DEREK OWEN, Plaintiffs, Appellants, v. DONNIE R. MARSHALL, ACTING ADMINISTRATOR, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

203 F.3d 1 (1st Cir. 2000)

NEW HAMPSHIRE HEMP COUNCIL, INC. and DEREK OWEN, Plaintiffs, Appellants, v. DONNIE R. MARSHALL, ACTING ADMINISTRATOR, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Defendant, Appellee.

No. 99-1082.

United States Court of Appeals, For the First Circuit.

Heard Dec. 6, 1999.

Decided January 28, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge.

Gordon R. Blakeney, Jr. for appellants.

Dana J. Martin, Appellate Staff, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Paul M. Gagnon, United States Attorney, and Mark B. Stern, Appellate Staff, Civil Division, Department of Justice, were on brief for appellee.

Before Selya, Boudin and Lynch, Circuit Judges.

BOUDIN, Circuit Judge.

This case, which involves the definition of marijuana as used in federal criminal statutes, has its origin in a defeated legislative proposal in New Hampshire.¹ In 1998, Derek Owen, a member of the New Hampshire state legislature, co-sponsored a bill to legalize and regulate the cultivation of "industrial hemp." The connection between the criminal statutes and Owen's bill is that both the drug commonly known as marijuana and various industrial products (e.g., rope) derive from different portions of the plant popularly called the hemp plant and designated Cannabis sativa in the Linnaean system of botanical classification.²

In general, the drug is derived from the flowers or leaves of the plant while the fibers used for rope and other industrial products are taken from the stalk. Cannabis sativa plants grown for industrial products generally are cultivated and mature differently from those intended for the marijuana drug. All contain THC (a short-hand reference to tetrahydrocannabinol), the ingredient that gives marijuana its psychoactive or euphoric properties; but those plants grown for drug use contain a higher concentration of THC than those grown for most industrial products. Owen's bill limited its definition of "industrial hemp" to those cannabis sativa plants containing a THC concentration of 1 percent or less.³

Several witnesses testified on Owen's bill before a New Hampshire house subcommittee. One witness, George Festa, appeared on behalf of the U.S. Drug Enforcement Administration ("DEA"). He testified that regardless of intended "industrial" use, the DEA views the cultivation of cannabis sativa plants as the manufacture of marijuana and therefore illegal under federal law (absent federal licensing).⁴ Although Owen's bill was thereafter recommended for passage by the house committee, it was defeated on a relatively close vote (175 to 164) in the full house on February 6, 1998.

On April 30, 1998, Owen and the New Hampshire Hemp Council brought the present action in the federal district court in New Hampshire against the DEA Administrator. Owen, who farms in New Hampshire, said that he and the Hemp Council wanted to cultivate cannabis sativa plants to produce fiber and other industrial products but were deterred by the DEA's position. The complaint sought a declaration that in defining "marijuana," Congress had not criminalized the growth of "non-psychoactive" (i.e., low-THC) cannabis sativa as well as an injunction to prevent the DEA from prosecuting producers. (Other claims were made--for example, that the Festa testimony violated the plaintiffs' First Amendment rights--but they are not pursued on this appeal.)

In May 1998, the magistrate judge held a hearing on the preliminary relief sought by plaintiffs. After the hearing, which included testimony from plaintiffs' expert relating to cannabis sativa, the magistrate judge recommended a denial of the request on the merits and dismissal of the case for lack of standing. On de novo review, the district court agreed that there was no standing; in the course of deciding the standing issue, the district court also determined that the federal statutory definition of marijuana, 21 U.S.C. § 802(16), includes cannabis sativa plants even if grown solely for the production of industrial products.

Owen and the Hemp Council now appeal, and we face at the outset several threshold objections by the government. The first of these is the claim, seemingly endorsed by the district court, that the plaintiffs lack standing. Standing, in its Article III aspect, requires (generally speaking) an actual injury to a plaintiff traceable to the defendant's conduct and likely to be redressed by available judicial relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The district court reasoned that since New Hampshire law forbade production of cannabis sativa for industrial use, Owen could not grow the plants for this purpose, however the federal statute might be read.

Some might think this an unseemly argument by the government. After all, the DEA urged its own reading of the federal statute on the New Hampshire legislature to defeat, as fruitless, Owen's effort to legalize "industrial hemp" production under state law; and now, when a challenge is made by Owen to the DEA's reading of the federal statute, the DEA points to the continued existence of New Hampshire's ban as a reason why it is useless for us to review the DEA's interpretation. Joseph Heller's phrase "Catch-22" was not intended as a compliment.

In all events, Article III standing is largely, see 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3531.1, at 352, 362-63 (2d ed. 1984)--albeit not entirely, compare id. at 355-56--a practical jurisprudence. Here, the existing New Hampshire drug statute is designed, in specifying which drugs are controlled, to mirror the federal listings. New Hampshire's law initially defined substances by cross-reference to the then-existing federal schedules of controlled drugs, see 1985 N.H. Laws § 293:8; State v. Cartier, 575 A.2d 347, 350 (N.H. 1990), but provided that changes in the federal schedules are to be adopted automatically, unless a designated state official makes a contrary ruling after a hearing. See N.H. Rev. Stat. Ann. § 318-B:1-a(V) (1995).

Thus, if cannabis sativa plants destined for industrial products were declared not to be marijuana under the federal statute, this would in due course probably lead to their treatment as lawful under New Hampshire law under the provision just cited. Accordingly, the declaratory relief sought by plaintiffs in this case as to federal law would as a practical matter likely provide them with meaningful relief sufficient to support standing under Article III. This is so without resort to speculation as to whether Owen's bill would be passed by the state legislature and would de-link New Hampshire "industrial hemp" regulation entirely from the federal scheduling scheme.

The government's other threshold objection is more conventional. In general, federal courts are disinclined to provide either injunctive or declaratory relief to foreclose federal criminal prosecutions in the absence of a reasonably clear and specific threat of prosecution. See 13A Wright, Miller & Cooper, supra, § 3532.5, at 175-80 (2d ed. 1984). This doctrine, which is often referred to as a standing requirement, is probably more complex in character, involving as well concerns about ripeness and the exercise of equitable discretion, id. at 189-91; but in all events the cautionary approach is well established, although somewhat relaxed where First Amendment interests are threatened. See, e.g., Meese v. Keene, 481 U.S. 465, 473 (1987).

Nevertheless, just how clear the threat of prosecution needs to be turns very much on the facts of the case and on a sliding-scale judgment that is very hard to calibrate. It is true, as the government says, that some cases have seemed to draw a line between a general threat to the world and a specific threat to an individual, see 13A Wright, Miller & Cooper, supra, § 3532.5, at 176-77, but in yet other cases the courts are content with any realistic inferences that show a likelihood of prosecution, id. at 179-80. There may be a trend in favor of such a practical approach, see, e.g., Mobil Oil Corp. v. Attorney General of Virginia, 940 F.2d 73, 75-76 (4th Cir. 1991); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1360 (10th Cir. 1981), which Wright and Miller strongly endorse. See 13A Wright, Miller & Cooper, supra, § 3532.5, at 180-84.

Little risk exists that courts will be flooded with untoward pre-enforcement challenges; most issues in criminal cases turn on multiple facts that cannot be taken in isolation or definitively known in advance. Even where a statute appears to make conduct criminal, an unambiguous disclaimer of coverage by the prosecutor is likely to suffice. Cf. Rhode Island Ass'n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 31-33 (1st Cir. 1999). And, because declaratory and injunctive relief is discretionary, Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 (1993), there is plenty of room for courts to deny improvident requests even if there is an otherwise ripe case and a realistic threat of prosecution.

We think that the threat of federal prosecution here is realistic. Owen, a farmer as well as a legislator, proposes to grow cannabis sativa plants to produce industrial products if permitted to do so. The DEA has made clear, both by its conduct in New Hampshire and elsewhere, that it views this as unlawful under the federal criminal statutes governing marijuana. A recent DEA ruling, reflected in the Federal Register, takes the same view. See Hemp Products Research Co., 63 Fed. Reg. 260, 261 (1998). Nor, as the medical-use controversy bears out, see United States v. Oakland Cannabis Buyers' Cooperative, 190 F.3d 1109 (9th Cir. 1999), is there any reason to doubt the government's zeal in suppressing any activity it regards as fostering marijuana use.

As for ripeness, the issue posed by Owen is an abstract one of statutory interpretation:...