Judge plans to rule on industrial hemp motion by end of month

By SUE ROESLER, Farm and Ranch Guide
Friday, November 23, 2007 3:38 PM CST

Producers Wayne Hauge of Ray (from left) and state Rep. David Monson of Osnabrock meet with Tim Purdon, their Bismarck attorney, after court Nov. 14.

BISMARCK, N.D. - North Dakota producers who are thinking of seeding industrial hemp next spring like their Canadian neighbors could be one step closer by the end of November.

After hearing arguments on the industrial hemp lawsuit Nov. 14 in Bismarck, N.D., U.S. District Judge Dan Hovland said he will issue a ruling on the case by the end of the month.

That won't be the final answer however.

Tim Purdon, one of the attorneys for the two farmers who filed the lawsuit - North Dakota State Rep. David Monson of Osnabrock, and Wayne Hauge of Ray - said if the judge rules in their favor, there will other motions that “will be put into play.”

The current case the judge will rule on is the DEA's motion to dismiss the producers' lawsuit.

Adam Eidinger, communication director for VoteHemp (a single-issue group that wants U.S. farmers to be able to grow industrial hemp), said the court “asked all the right questions” for a ruling that could go in favor of the two producers.

“I felt good about how it went,” Eidinger said. “We were thankful the court gave us as much time as he did. That wouldn't happen in Washington, D.C.”

During arguments, Hovland said he doubted the two North Dakota farmers would ever receive a license from the DEA to grow hemp, citing the status of an application to the DEA by North Dakota State University to cultivate hemp seeds to find varieties that suit the Northern Plains as required by the ND State Legislature. NDSU has been waiting eight years for the DEA license but has never gotten one.

DEA attorney Wendy Ertmer countered that there had been two cases of the DEA granting university licenses for marijuana research - one to Hawaii and one to Mississippi. She didn't, however, know the specifics of either case.

Ertmer added that there “could be any number of reasons” why the application was taking so long. However, she was not able to state those reasons, saying the only time frame requirement for the DEA to respond to any application is the initial 60 days.

Hovland said, “Why doesn't the DEA deny the application so we can move on from here? In my view, I don't see any realistic prospect that the DEA will issue (a license to the farmers).”

Attorney Joe Sandler, who argued the case in court for the two North Dakota producers, said what makes this case different than any other case where farmers wanted to grow hemp was the state license.

“North Dakota is the first and only state with a regulatory system in place for cultivating industrial hemp,” Sandler said.

The state has not only issued the producers a license to grow it, but has passed laws ordering the state ag department and the attorney general to regulate it, he said.

The only part of the hemp plant that would leave the farmer's field would be the seed, stalk, or oil - parts which are used to make consumer products.

Eidinger later said that there are no flowers on the industrial hemp plant, anyway, as there are with a marijuana plant because it is pollinated. The growing season is different so the hemp will produce seeds, not flowers.

Industrial hemp in North Dakota would have to have less than .3 of 1 percent THC (rendering it non-psychoactive).

“That's the lowest amount of any country growing industrial hemp in the world today,” Sandler told the court.

The judge asked if there would be “enforcement nightmares” from regulating industrial hemp.

Sandler said it was unclear why the DEA was concerned about industrial hemp growing in North Dakota since none of the parts containing THC would ever leave the farmer's field.

The judge asked Ertmer if she knew about a House bill introduced in Congress that would redefine marijuana to exclude industrial hemp. That bill would essentially remove hemp from the controlled substances regulation.

Ertmer said she had no idea of the status of the bill, stating that since hemp contains a small amount of THC, it is a controlled substance.

Sandler told the court there had been no hearings on the House bill, and added changing a law of this kind in Congress would likely take a long time.

Eidinger later said the reason the bill is languishing in the House is because Congress is waiting to see what happens to the case in North Dakota.

Ertmer told the court during arguments that the two producers shouldn't be able to move forward on a lawsuit until after they had grown hemp and were criminally prosecuted by the DEA.

“They have to open themselves to a crime to challenge the DEA?” the judge countered.

At a later interview, producers Monson and Hauge talked about the many commercial endeavors possible for industrial hemp. Monson said his neighbors to the north in Canada who grow hemp are still reaping a $200 to $300 profit per acre over traditional crops.

Two years ago, Monson spoke at a winter conference in Winnepeg, where he found out that Canada was willing to sell U.S. farmers its hemp seed.

They don't see the U.S. as competition because of the amount of possibilities for hemp - such as rope and clothing. Currently, the U.S. can import hemp products, but can't grow it.

“If we could grow it, right now there's a number of businesses that could use it. We could supply a niche market,” Monson said.

Monson added he had some good crops on his farm this year, but knows hemp would produce better because it grows tall and crowds out weeds. Diseases are not really a problem with hemp, either.

Monson said he suffers almost every year from scab in wheat.

“Wheat that should have had yields of 60 to 80 bushels this year were down to 40 to 45 bushels,” he said. “We had some very good crops but we're not getting the yields because we're too wet.”

Fortunately this year, the scab was early enough that it didn't affect the sampling, Monson said. He said he didn't get a discount for his wheat at the elevator, mainly because wheat is in short supply throughout the world.

Monson said industrial hemp would also be good as a biomass crop for ethanol plants. “We need more biofuel with the price of fuel,” he added.

With hemp not an option right now, Monson said he introduced a bill this year in the state House that would “advance switchgrass as a biofuel.” Other states are using corn stover, but North Dakota would be an ideal state to grow switchgrass in, he added. 

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