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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY ASHLAND DIVISION CIVIL ACTION NO. T.W. GREER; MARVIN MOORE, JR.; GERALDINE CARTER; JEAN ADAIR; ANDY GRAVES; HARRY KINNARD; KENTUCKY HEMP GROWERS COOPERATIVE ASSOCIATION, INC.; and THE HEMP COMPANY OF AMERICA PLAINTIFFS V.COMPLAINT UNITED STATES DRUG ENFORCEMENT ADMINISTRATION; UNITED STATES DEPARTMENT OF JUSTICE; JANET RENO, as United States Attorney General; and THOMAS CONSTANTINE, as Administrator of the Drug Enforcement Administration DEFENDANTS * * * * * * Plaintiffs T.W. Greer, Marvin Moore, Jr., Geraldine Carter, Jean Adair, Andy Graves, Harry Kinnard, Kentucky Hemp Growers Cooperative Association, Inc., and The Hemp Company of America, by their attorneys Michael Kennedy, P.C., for their complaint herein against defendants United States Drug Enforcement Administration, United States Department of Justice, Janet Reno, as United States Attorney General, and Thomas Constantine, as Administrator of the Drug Enforcement Administration, respectfully allege as follows: Nature of the Case 1.Plaintiffs hereby bring three claims for declaratory relief to define the rights and obligations of the parties in regard to the production of industrial hemp ("hemp"), an agricultural product that has many legitimate and lawful commercial uses. First, plaintiffs seek a declaration that, in prohibiting the use of the plant Cannabis sativa L. ("cannabis") in the form of the psychoactive drug marijuana ("marijuana"), Congress did not 1intend to prohibit the legitimate production of hemp. Thus, defendants' interpretation and enforcement of the Controlled Substances Act ("CSA"), 21 U.S.C. ßß 801 et seq., to prohibit industrial hemp production, violates the constitutional doctrine mandating the separation of powers and is in excess of the jurisdiction granted by Congress. Second, because Congress has not preempted the regulation of hemp, plaintiffs seek a declaration that hemp production is left to the States and individual citizens, and that the States may refrain from enacting or enact legislation regarding the production of hemp without conflicting with federal law. Third, plaintiffs seek a declaration that hemp and marijuana, as defined in 21 U.S.C. ß 802 (16), are botanically and legally distinct products of cannabis. Jurisdiction and Venue 2.The jurisdiction of this Court is founded upon 28 U.S.C. ß 1331, in that this suit arises under the Constitution and laws of the United States. 3.Venue is proper in this Court pursuant to 28 U.S.C. ß 1391(e), in that defendants are officers and agencies of the United States, and, as hereinafter appears, a substantial part of the events giving rise to these claims occurred in this District, and several plaintiffs reside in the Ashland Division of this District. 4.Plaintiff T.W. Greer is a resident of Lawrence County, Kentucky. 5.Plaintiff Marvin Moore, Jr., is a resident of Lawrence County, Kentucky. 6.Plaintiff Geraldine Carter, is a resident of Morgan County, Kentucky. 7.Plaintiff Jean Adair is a resident of Mason County, Kentucky, but has farmland which is the subject of this suit in Elliot County, Kentucky. 8.Plaintiff Andy Graves is a resident of Fayette County, Kentucky. 9.Plaintiff Harry Kinnard is a resident of Johnson County, Kentucky. 10.Plaintiff Kentucky Hemp Growers Cooperative Association, Inc., is based in Fayette County, Kentucky. 11.Plaintiff The Hemp Company of America is based in New York City, New York. 12.Defendant United States Drug Enforcement Administration, is a resident of Arlington, Virginia. 13.Defendant United States Department of Justice is a resident of Washington, D.C. 14.Defendant Janet Reno, as United States Attorney General, is a resident of Washington, D.C. 15.Defendant Thomas Constantine, as Administrator of the Drug Enforcement Administration is a resident of Arlington, Virginia. 16.This case should be assigned to the Ashland Division jury division because a substantial part of the events or omissions giving rise to the claim occurred, and a substantial part of the property that is the subject of the action is situated in the Ashland Division. Parties 17.Individual Plaintiffs are residents of the Commonwealth of Kentucky and engage in farming. 18.Plaintiff Kentucky Hemp Growers Cooperative Association, Inc. ("Kentucky Hemp Growers") is a corporation organized and existing under the laws of the Commonwealth of Kentucky and having a principal place of business in Lexington, Kentucky, which engages in the promotion and re-establishment of hemp as an alternative agricultural crop. 19.Plaintiff The Hemp Company of America ("Hemp Company of America") is a corporation organized and existing under the laws of the State of New York, and having its principal place of business in New York City, New York, which engages in the business of magazine publishing and distributing materials about products made from hemp. Plaintiff Hemp Company of America wholly owns the subsidiary companies Planet Hemp and Hemp Times, which are corporations organized and existing under the laws of the State of New York, and having their principal place of business in New York City, New York. Planet Hemp engages in the business of retail sales of hemp products. Hemp Times engages in the business of magazine publishing and distributing materials about products made from hemp. 20.Defendant United States Drug Enforcement Administration ("DEA") is an administrative agency of the Executive Branch of the United States government. DEA has responsibility for the enforcement of the CSA. 21.Defendant United States Department of Justice ("DOJ") is a Department of the Executive Branch of the United States government. DOJ has administrative control over the affairs of the DEA. 22.Defendant Janet Reno ("Reno") is the Attorney General of the United States who has administrative and executive control of the DOJ. 23.Defendant Thomas Constantine ("Constantine") is the Administrator of the DEA who has administrative and executive control of the DEA. No Consent to Magistrate 24.Plaintiffs do not consent to appointment of a magistrate to conduct all proceedings and to enter judgment in this civil matter. The Botanical and Legal Distinction Between Hemp and Marijuana 25.Although hemp and marijuana are both derived from the same plant species, cannabis, each product originates from a different part and botanical strain of the plant. These distinctions can be detected and identified scientifically. 26.Hemp is produced from the fibers of the plant, and is derived from strains of the plant having a high fiber content. Hemp has a wide variety of legitimate industrial and commercial uses. 27.Marijuana is produced from the leaves and flowers of the plant, and is derived from different strains of the plant than those utilized for the production of hemp. 28.The United States Department of Agriculture Natural Resources Conservation Service recognizes the difference between hemp and marijuana in the United States government's National Plants Database. The scientific name given to hemp is "Cannabis L," while marijuana has several listings under "Cannabis sativa...." 29.The North American Free Trade Agreement ("NAFTA") and the General Accord on Trade and Tariffs ("GATT") recognize hemp as a valid agricultural crop. 30.All members of the Group of Seven Industrialized Nations, except the United States, permit hemp cultivation and recognize that hemp and marijuana are botanically and legally distinct products of the cannabis plant. 31.As shown below, Congress has also recognized that hemp and marijuana are botanically distinct products of the cannabis plant and has accorded a distinct legal status to each product. The Intent of Congress in Enacting Legislation Regarding Cannabis 32.In 1937, Congress enacted the Marijuana Tax Act (the "1937 Act"), the first federal legislation in regard to cannabis. 33.The legislative history of the 1937 Act evidences the intent of Congress to prohibit only the use of marijuana as a psychoactive drug, and not to prohibit or impair the legitimate production of hemp fibers and related products, an industry that was thriving economically at that time in several areas of the United States, including Kentucky. 34.Both the proponents of the 1937 Act, who were officials of the United States Treasury Department, and Members of Congress made unequivocal statements in committees of the House of Representatives and the Senate, and on the floor of Congress, evidencing their intent not to prohibit or impair the legitimate production of hemp. 35.On June 11, 1937, Representative Buck of California, who would request his colleagues' unanimous consent to the 1937 Act, informed the House in regard to the treatment of hemp in the 1937 Act that, "The plant [cannabis] has a number of industrial uses...[including] the production of hemp fiber from the mature stalks...The bill protects all of these legitimate uses of the plant, the word 'marijuana' being defined in Section 1 of the bill so as to cover solely the illegitimate use of the plant as a narcotic." 36.On June 14, 1937, the day the House of Representatives initially passed the 1937 Act, the following colloquy took place on the floor of the House: Mr. Robsion of Kentucky. Mr. Speaker, reserving the right to object, of course, I am opposed to the use of the drug taken from the hemp, but is this bill so drawn that it will not interfere with or injure the production of hemp for commercial purposes in a legitimate way? Mr. Buck. This bill defines marijuana so that every legitimate use of hemp is protected. Mr. Robsion of Kentucky. The gentleman from Kentucky [Mr. Fred M. Vinson] is present. Kentucky is a hemp-producing State. I would like to have a statement from the gentleman from Kentucky. [Mr. Vinson]. Mr. Fred M. Vinson. The industry was represented in the person of Mr. Lozier and it was agreed that the language of the bill took care of the industrial end of it. ... Mr. Meeks. Is this substance that is called marijuana used in the manufacture of commercial articles for sale besides drugs and cigarettes? Mr. Buck. The fiber of the plant and the stem of the plant are used to manufacture twine. There are no poisonous materials contained in the fiber or stem. The poisonous material is contained in the flowering top and the leaves. That is what we define as marijuana in this bill, and that is what we propose to control. Mr. Meeks. It does not interfere with the manufacture of the fiber and the other elements of the stem? Mr. Buck. It will not. 37.At hearings before committees of the Senate and the House of Representatives considering the 1937 Act, a proponent of the bill, Clinton Hester, Assistant General Counsel, Treasury Department, stated, "The plant [cannabis] also has many industrial uses... The production and sale of hemp and its products for industrial purposes will not be adversely affected by this bill... Since hemp fiber and articles manufactured therefrom are obtained from the harmless mature stalk of the plant, all such products have been completely eliminated from the purview of the bill by defining the term 'marijuana' in the bill, so as to exclude from its provisions the mature stalk and its compounds or manufacturers... We could not make Cannabis Sativa L., the hemp plant, the subject of the taxes contained in this bill because it was not intended to tax the whole plant, but merely the parts of the plant which contain the drug. The parts of the plant which contain the drug are commonly known as marijuana, so the taxes were imposed on 'marijuana.'" 38.At hearings before committees of the Senate and the House of Representatives considering the 1937 Act, another proponent of the bill, H.J. Anslinger, Commissioner of Narcotics, Treasury Department, stated, "I would say they [hemp products] are not only amply protected under this act, but they can go ahead and raise hemp just as they have always done it... Of course the fiber products are entirely out of the bill... Then the hemp product is used in some parts of Kentucky, Minnesota, and Wisconsin. It is grown for hemp purposes. It makes very fine cordage, and this legislation exempts the mature stalk when it is grown for hemp purposes." 39.In 1961, the Senate ratified and adopted the Single Convention On Narcotic Drugs, which expressly exempted "the cultivation of the cannabis plant exclusively for industrial purposes (fiber and seed) or horticultural purposes" from the Convention's system of controls. The Convention further required its parties to adopt such measures as necessary to prevent only the illicit use of marijuana. 40.In 1970, Congress enacted the CSA and repealed the 1937 Act. Congress stated its intention that, in the CSA, drugs "will be controlled in conformity with the treaty or other international agreement obligations" of the United States. Congress further stated its intention that the CSA prohibit those substances that "have been placed under control under existing law." The definition of marijuana in the 1937 Act explicitly excluded the mature stalks of the plant, the fiber produced from such stalks, and related compounds. The CSA, as enacted and presently, contains precisely the same definition of marijuana as did the 1937 Act. Plaintiffs' Readiness and Ability to Produce Hemp 41.In light of the intention of Congress not to prohibit or impair the legitimate production of hemp, hemp production and legislation within the States regarding hemp does not conflict with federal law. 42.Greer, Moore, Carter, Adair, Graves, Kinnard and Kentucky Hemp Growers are ready, willing and able to produce hemp on their farms in the Commonwealth of Kentucky. These plaintiffs are knowledgeable about the agronomics and economics of hemp production, and they can produce hemp profitably in the State of Kentucky. 43.Hemp Company of America is ready, willing and able to contract with the other plaintiffs, as well as other Kentucky farmers, for the purchase of the hemp crop. Hemp Company of America is knowledgeable about the economics of manufacturing finished products from hemp, and they can engage profitably in such business. Hemp Company of America's wholly owned subsidiaries, Hemp Times and Planet Hemp, are engaged in hemp-related businesses for profit. Defendants' Final Administrative Determinations Regarding Hemp 44.The defendant DEA has taken the position that hemp and marijuana are "botanically and legally the same plant. An illegal drug by any other name is still an illegal drug." 45.The DEA has further stated that, because the DEA considers hemp a Schedule I controlled substance under the CSA, the DEA has opposed the granting of licenses to legitimate hemp producers, "determining that it is not in the public interest to allow this growth." 46.The DEA has made the determination that the production of hemp constitutes the commission of a felony under the CSA, and that the growing of industrial hemp conflicts with and is preempted by federal law. 47.The DEA has vowed to enforce the purported federal prohibition against the production of hemp "with all the vigor at DEA's command," including available criminal sanctions. 48.Upon information and belief, the foregoing positions taken by the DEA regarding hemp represent the official and final administrative determinations of the DEA, the DOJ, Reno and Constantine, that the production of hemp violates and is preempted by the CSA, and that hemp producers will be prosecuted and subjected to available civil and criminal sanctions. 49.In light of defendants' final determination that hemp violates federal law and defendants' opposition to licensing hemp producers, any and all resort to administrative remedies would be futile. 50.In light of the intention of Congress not to prohibit or impair the legitimate production of hemp, defendants are committing plain error in asserting jurisdiction over hemp, and plaintiffs would face irreparable injury in the form of unnecessary and unrecoverable costs and expenses if they pursued futile administrative remedies. Defendants Have Violated the Constitution and Acted in Excess of the Jurisdiction Granted by Congress 51.Inasmuch as Congress intended not to prohibit or impair the legitimate production of hemp, defendants' determination, that hemp is unlawful under the CSA, constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, and in excess of the jurisdiction granted by Congress to defendants. 52.Inasmuch as Congress intended not to prohibit or impair the legitimate production of hemp, defendants' determination, that hemp production and legislation by the States regarding hemp conflicts with and is preempted by federal law, constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, and in excess of the jurisdiction granted by Congress to defendants. 53.Inasmuch as Congress recognized that hemp and marijuana are botanically distinct products of the cannabis plant and intended a distinct legal status for each product, defendants' determination, that hemp and marijuana are botanically and legally identical under 21 U.S.C. ß 802 (16), constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, and in excess of the jurisdiction granted by Congress to defendants. Plaintiffs' Injuries and the Necessity for Declaratory Relief 54.Defendants' unlawful interpretation of federal law presents an absolute barrier to the production of hemp in the Commonwealth of Kentucky, and to the production of hemp by plaintiffs. 55.Plaintiffs have been injured by defendants' unlawful conduct, and are entitled to declaratory relief to redress those injuries. 56.If plaintiffs fail to conform their conduct to defendants' unlawful interpretation of federal law, plaintiffs will be liable for severe criminal and civil sanctions such as imprisonment, fines, forfeiture of property, as well as loss of reputation. 57.By conforming to defendants' unlawful interpretation of federal law, plaintiffs will lose valuable economic advantage and opportunity, in that they must forego the legitimate production of hemp. 58.Apart from plaintiffs proceeding to produce hemp, resulting in an enforcement action by defendants, with its attendant severe sanctions, declaratory relief presents the only means of resolving this dispute between the parties regarding the proper interpretation of federal law. 59.A ruling in plaintiffs' favor will have a substantial likelihood of redressing plaintiffs' injuries, in that the absolute barrier to the production of hemp will be removed. First Claim for Relief (Declaratory Judgment) 60.Plaintiffs repeat and reallege each and every allegation contained in paragraphs "1" through "64" of this complaint, as if fully set forth here. 61.Plaintiffs contend, as described above, that when Congress prohibited the use of marijuana as a psychoactive drug, Congress intended not to prohibit or impair the legitimate production of hemp. 62.Defendants have made a final determination that hemp, like marijuana, is a Schedule I controlled substance under the CSA, and that the production of hemp constitutes a felony under federal law. 63.The parties' dispute with respect to the production of hemp, as described above, presents an actual controversy within the meaning of 28 U.S.C. ß 2201. Resolution of this actual and present controversy will enable the parties to determine their respective rights and obligations in regard to the production of hemp. 64.Plaintiffs seek a judgment, pursuant to 28 U.S.C. ßß 2201-02, declaring that defendants' determination, that hemp is unlawful under the CSA, constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, that defendants have acted in excess of the jurisdiction granted them by Congress, and that hemp is not within the purview of the CSA. Second Claim for Relief (Declaratory Judgment) 65.Plaintiffs repeat and reallege each and every allegation contained in paragraphs "1" through "64" of this complaint, as if fully set forth here. 66.Plaintiffs contend, as described above, that inasmuch as Congress intended not to prohibit or impair the legitimate production of hemp, the States have the power to refrain from enacting or to enact legislation regarding the production of hemp. 67.Defendants have made a final determination that action by the States permitting or regulating the production of hemp conflicts with and is preempted by federal law. 68.The parties' dispute with respect to the purported preemption by federal law of action by the States regarding hemp, as described above, presents an actual controversy within the meaning of 28 U.S.C. ß 2201. Resolution of this actual and present controversy will enable the parties to determine their respective rights and obligations in regard to the purported federal preemption of action by the States. 69.Plaintiffs seek a judgment, pursuant to 28 U.S.C. ßß 2201-02, declaring that defendants' determination, that action by the States permitting or regulating the production of hemp conflicts with and is preempted by federal law, constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, that defendants have acted in excess of the jurisdiction granted them by Congress, and that the States have the power to refrain from enacting or to enact legislation permitting or regulating the production of hemp. Third Claim for Relief (Declaratory Judgment) 70.Plaintiffs repeat and reallege each and every allegation contained in paragraphs "1" through "64" of this complaint, as if fully set forth here. 71.Plaintiffs contend, as described above, that Congress recognized that hemp and marijuana are botanically and legally distinct products of the cannabis plant, and that the definition of marijuana set forth in 21 U.S.C. ß 802 (16) does not encompass hemp. 72.Defendants have made a final determination that hemp and marijuana are botanically and legally indistinguishable, and that both are identical substances for purposes of 21 U.S.C. ß 802 (16). 73.The parties' dispute with respect to the botanical characteristics of hemp and marijuana, as described above, presents an actual controversy within the meaning of 28 U.S.C. ß 2201. Resolution of this actual and present controversy will enable the parties to determine their respective rights and obligations in regard to the botanical and legal status of hemp under federal law. 74.Plaintiffs seek a judgment, pursuant to 28 U.S.C. ßß 2201-02, declaring that defendants' determination, that hemp and marijuana are botanically and legally identical products of cannabis under 21 U.S.C. ß 802 (16), constitutes legislative action by the Executive Branch of government, in violation of the constitutional doctrine mandating the separation of powers, that defendants have acted in excess of the jurisdiction granted by Congress, that hemp and marijuana are botanically and legally distinct, and that the definition of marijuana set forth in 21 U.S.C. ß 802 (16) does not encompass hemp. WHEREFORE, plaintiffs T.W. Greer, Marvin Moore, Jr., Geraldine Carter, Jean Adair, Andy Graves, Harry Kinnard, Kentucky Hemp Growers Cooperative Association, Inc. and The Hemp Company of America demand judgment granting them declaratory relief, as described above, together with the costs of this action, including attorneys' fees, and such other and further relief as the Court may deem just and proper. DATED: MICHAEL KENNEDY PC Attorney for Plaintiffs 425 Park Avenue Suite 2600 New York, New York 10022 (212) 935-4500 DATED: MCCOY & WEST Attorney for Plaintiffs 309 North Broadway Lexington, Kentucky 40507 (606) 254-6363 |
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