National Organization for Reform of Marijuana Laws (Norml) v. Drug Enforcement Administration, U.S. Dept. of Justice

Decision Date26 April 1977
Docket NumberNo. 75-2025,75-2025
Citation559 F.2d 735
PartiesThe NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML), Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, U. S. DEPARTMENT OF JUSTICE, Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

Peter H. Meyers, Washington, D. C., with whom R. Keith Stroup, Washington, D. C., was on the brief, for petitioner.

Robert J. Rosthal, Deputy Chief Counsel, Drug Enforcement Administration, with whom Jeffrey J. Freedman, Atty., Drug Enforcement Administration, Washington, D. C., and Allan P. MacKinnon, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondent.

Before WRIGHT and ROBB, Circuit Judges, and GESELL, * District Judge.

Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.

Dissenting opinion filed by ROBB, Circuit Judge.

J. SKELLY WRIGHT, Circuit Judge:

The present case represents yet another phase in the ongoing controversy between petitioner National Organization for the Reform of Marijuana Laws (NORML) and respondent Drug Enforcement Administration (DEA), an agency within the Department of Justice. 1 NORML has been seeking to effect a change in the controls applicable to marihuana under the Controlled Substances Act of 1970, 21 U.S.C. § 801 et seq. (1970) (CSA or Act). Respondent DEA has resisted those efforts by citing United States treaty obligations under the Single Convention on Narcotic Drugs, opened for signature March 30, 1961, 18 U.S.T. 1407, 30 T.I.A.S. No. 6298, 520 U.N.T.S. 151 (Single Convention). 2 A brief overview of the pertinent portions of those laws is necessary to a meaningful discussion of the background of this litigation.

I. THE CONTROLLED SUBSTANCES ACT

In 1970 Congress enacted the Controlled Substances Act, a comprehensive statute designed to rationalize federal control of dangerous drugs. 3 The Act contains five categories of controlled substances, designated as Schedules I through V 4 and defined in terms of dangers and benefits of the drugs. 5 21 U.S.C. § 812(b)(1)-(5). The control mechanisms imposed on manufacture, acquisition, and distribution of substances listed under the Act vary according to the schedule in which the drug is contained. 6 In drafting the CSA Congress placed marihuana in Schedule I, 7 the classification that provides for the most severe controls and penalties.

Recognizing that the results of continuing research might cast doubt on the wisdom of initial classification assignments, 8 Congress created a procedure by which changes in scheduling could be effected. Pursuant to Section 201(a) of the Act, 21 U.S.C. § 811(a), the Attorney General "may, by rule," add a substance to a schedule, transfer it between schedules, or decontrol it by removal from the schedules. 9 A reclassification rule 10 promulgated under this section must be made on the record after opportunity for hearing, in accordance with the rulemaking procedures prescribed by the Administrative Procedure Act, 5 U.S.C. ch. 5, subch. II (1970). Section 201(a) further provides that rescheduling proceedings may be initiated by the Attorney General on his own motion, at the request of the Secretary of Health, Education and Welfare, or, as in the present case, on petition of any interested party.

At the heart of the present controversy is the statutory requirement that the Attorney General share his decisionmaking function under the Act with the Secretary of HEW. Specifically, Section 201(b), 21 U.S.C. § 811(b), provides that prior to commencement of reclassification rulemaking proceedings the Attorney General must "request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance." The evaluation prepared by the Secretary must address the scientific and medical factors enumerated in Section 201(c), 21 U.S.C. § 811(c); these factors relate to the effects of the drug and its abuse potential. Pursuant to Section 201(b), the Secretary's recommendations "shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance." 11

Section 201(d) of the Act, 21 U.S.C. § 811(d), contains a limited exception to the referral procedures detailed in Section 201(b)-(c). Subsection (d) provides:

If control is required by United States obligations under international treaties, conventions, or protocols in effect on the effective date of this part, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section 12 or section 812(b) of this title 13 and without regard to the procedures prescribed by subsections (a) and (b) of this section.

The issue that has produced the widest gulf between the parties is the effect of subsection (d) on the decisionmaking procedures triggered by NORML's petition to decontrol or reschedule marihuana. Respondent argues that where, as here, United States treaty obligations require any measure of control over a substance, Section 201(d) relieves the Attorney General of his duty to refer the petition to the Secretary of HEW. Petitioner takes the position that subsection (d) does not obviate the statutory referral requirement, but merely authorizes the Attorney General to override the Secretary's recommendations to the extent those recommendations conflict with United States treaty commitments.

II. THE SINGLE CONVENTION ON NARCOTIC DRUGS

In 1948, in order to simplify existing treaties and international administrative machinery, members of the United Nations undertook codification of a single convention on international narcotics control. 14 In 1961, after three preliminary drafts, the Single Convention on Narcotic Drugs was opened for signature. The United States ratified the Single Convention in 1967 three years prior to enactment of the Controlled Substances Act.

Like the CSA, the Single Convention establishes several classifications or "schedules" of substances, to which varying regimes of control attach. 15 Schedule I of the Single Convention contains substances considered to carry a relatively high abuse liability; included in this category are heroin, methadone, opium, coca leaf, and cocaine. 16 Schedules II and III contain those substances regarded as less susceptible to abuse. 17 Finally, Schedule IV of the Single Convention unlike CSA Schedule IV embraces certain Schedule I substances, such as heroin, the abuse liability of which is not offset by substantial therapeutic advantages. 18

In contrast to the CSA, 19 the Single Convention prescribes different controls for various parts of the cannabis plant, as defined in Article 1, P 1:

(b) "Cannabis" means the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted, by whatever name they may be designated.

(c) "Cannabis plant" means any plant of the genus cannabis.

(d) "Cannabis resin" means the separated resin, whether crude or purified, obtained from the cannabis plant.

"Cannabis" and "cannabis resin" are listed in Schedules I and IV of the Single Convention and thus are subject to the controls applicable to each of those classifications. As Schedule I drugs 20 cannabis and cannabis resin carry the following restrictions: 21 Parties to the Single Convention are required to limit production, distribution, and possession of the drugs to authorized medical and scientific purposes. 22 Parties must license and control all persons engaged in manufacture 23 or distribution 24 of the drugs and must prepare detailed estimates of national drug requirements 25 and specified statistical returns. 26 Parties may not permit possession of the drugs "except under legal authority." 27 Finally, the treaty directs the parties to impose certain penal sanctions. 28

Cannabis and cannabis resin and other substances listed in Schedule IV invoke additional restrictions, set forth in Art. 2, P 5:

(a) A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and

(b) A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party. 29

As a result of the treaty's definition of "cannabis," the controls applicable to cannabis and cannabis resin apply to the leaves and seeds of the cannabis plant when they accompany the "flowering or fruiting tops" of the plant. However, when separated from the tops the leaves and seeds do not fall within the definition of "cannabis" or "cannabis resin" and are not subject to the controls applicable to Schedule I or IV substances. 30 Art. 28, P 3 is the only provision that applies to separated leaves:

The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.

The only provision arguably relevant to cannabis seeds is Art. 2, P 8, which provides:

The Parties shall use their best endeavors to apply to substances which do not fall under this Convention, but which may be used in the illicit manufacture of drugs, such measures of supervision as may be practicable. 31

III. HISTORY OF THE LITIGATION
A. The first court case.

On May 18, 1972 petitioner...

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