New Hampshire Hemp Council, Inc. v. Marshall

United States Court of Appeals

For the First Circuit

No. 99-1082

NEW HAMPSHIRE HEMP COUNCIL, INC.

and DEREK OWEN,

Plaintiffs, Appellants,

v.

DONNIE R. MARSHALL, ACTING ADMINISTRATOR,

UNITED STATES DRUG ENFORCEMENT ADMINISTRATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges,

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.

January 28, 2000

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.

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. See generally 5 The New Encyclopedia

Britannica 827 (15th ed. 1994).

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.

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). 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, No. 99-1812, 1999 WL 1128676, at *5-6

(1st Cir. Dec. 14, 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: whether the federal statute makes

criminal the production of cannabis sativa for use in making

industrial products. And the DEA's emphatic position equitably

argues for review--not because there is anything wrong with the

agency expressing its view but because, that view having been

expressed, there ought to be a way to resolve the legal correctness

of its position without subjecting an honest businessman to

criminal penalties well known for their severity and inflexible

administration. See generally 13A Wright, Miller, & Cooper, supra,

3532.5, at 183-84.

The DEA points out that it can license marijuana

production, see 21 U.S.C. 822-23; 28 C.F.R. 0.100(b) (1999),

and that Owen has not sought a license. But whether viewed as a

ripeness objection or one based on a failure to exhaust remedies,

the objection is unsound here, even if there were some realistic

prospect of a license for Owen. Owen's position is that his

proposed production of industrial products is not marijuana

production under the statute and therefore not subject to the

statute at all, whether as a prohibition or licensing scheme. If

he were correct, it is hard to see why he should be forced to apply

for a license. Cf. Leedom v. Kyne, 358 U.S. 184, 188-89 (1958).

This is quite an excursion, although one not easy to

avoid so far as it concerns an Article III standing objection, see

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-102

(1998), for a case that is fairly easy on the merits. For purposes

of the federal criminal statutes, "marijuana" is defined--not by

the DEA but by Congress--as follows:

[A]ll 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. Such term does not

include the mature stalks of such plant, fiber

produced from such stalks, oil or cake made

from the seeds of such plant, any other

compound, manufacture, salt, derivative,

mixture, or preparation of such mature stalks

(except the resin extracted therefrom), fiber,

oil, or cake, or the sterilized seed of such

plant which is incapable of germination.

21 U.S.C. 802(16)(emphasis added).

Owen's own complaint concedes that the industrial

products at issue are produced from plants of the "species"

cannabis sativa; strictly speaking, "cannabis" is the genus and

"sativa" is the species, see Honneus, 508 F.2d at 574, and the "L."

in the statute simply refers to Linnaeus' system of botanical

classification, see United States v. King, 485 F.2d 353, 360-61

(10th Cir. 1973). Owen's own expert admitted at the preliminary-

relief hearing that the plant from which the industrial products

are derived is cannabis sativa. The literature to which Owen cites

in the complaint says the same thing. In short, on a literal

reading of the statute, the plant--which is what Owen proposes to

grow--is within the statute's ban.

Statutory language is the starting point in statutory

interpretation, e.g., Schreiber v. Burlington Northern, Inc., 472

U.S. 1, 5 (1985), and, without getting into refinements on which

even the Supreme Court is divided, see, e.g., Sullivan v.

Finkelstein, 496 U.S. 617, 628 n.8 (1990); id. at 631-62 (Scalia,

J., concurring in part), it is the ending point unless there is a

sound reason for departure, see Robinson v. Shell Oil Co., 519 U.S.

337, 340 (1997). Here, nothing in Owen's complaint or arguments

warrants a narrower reading, nor have somewhat similar arguments

persuaded the several other circuits in which they have been

advanced, in attempts to carve out various exceptions for cannabis

sativa plants with low THC levels. We take Owen's key arguments

one by one.

Owen's main argument is that plants produced for

industrial products contain very little of the psychoactive

substance THC. However, the low THC content is far from

conclusive. See, e.g., United States v. Proyect, 989 F.2d 84, 87-

88 (2d Cir.), cert. denied, 510 U.S. 822 (1993); United States v.

Spann, 515 F.2d 579, 583-84 (10th Cir. 1975). It may be that at

some stage the plant destined for industrial products is useless to

supply enough THC for psychoactive effects. But problems of

detection and enforcement easily justify a ban broader than the

psychoactive variety of the plant. Owen's own expert testified at

the preliminary hearing that young cannabis sativa plants with

varying psychoactive properties are visually indistinguishable.

And the statute does not distinguish among varieties of cannabis

sativa.

Owen's best argument stems from legislative history. The

present definition of marijuana was first employed in the Marihuana

Tax Act of 1937, 50 Stat. 551. There, the basic definition covered

all cannabis sativa plants whether intended for industrial use or

drug production, id. at 1(b), see also S. Rep. No. 75-900, at 4

(1937), but the statute effectively distinguished between them by

taxing them differently. All producers of cannabis sativa and

certain legitimate users (e.g., doctors) were subject to a small

tax, ($1 per year), Marihuana Tax Act 2(a), 50 Stat. at 552; see

also S. Rep. No. 75-900, at 4, but no tax was applied to transfers

of the mature stalk of the plant, which is useful only for

industrial use, S. Rep. No. 75-900, at 4, and which was

specifically excluded from the definition of "marijuana," Marihuana

Tax Act 1(b), 50 Stat. at 551.

By contrast, to discourage "illicit" uses, an extremely

high tax ($100) applied to each transfer of other parts of the

plant to anyone who had not registered with the government and paid

his own occupational tax. Marihuana Tax Act 6, 7(a)(2), 50

Stat. at 553-54. And while the scheme permitted producers and

legitimate customers to register (e.g., doctors, researchers), id.

2, 50 Stat. at 551-52, it made no explicit provision for

registration by most consumers (except to exempt entirely patients

receiving marijuana by medical prescription, id. 6(b), 50 Stat.

at 553). Transfers that did not comply were made criminal. Id.

4, 8, 12, 50 Stat. at 553, 555, 556. See generally S. Rep. No. 75-

900; Smith v. United States, 269 F.2d 217, 218-20 (D.C. Cir.), cert

denied, 361 U.S. 865 (1959).

In 1970 Congress adopted the Controlled Substances Act,

84 Stat. 1242 (codified at 21 U.S.C. 801 et seq.), repealing the

1937 tax statute, 84 Stat. at 1291-92, but carrying forward its

definition of marijuana into the present criminal ban on

production, sale and possession, see note 3 above; United States v.

Walton, 514 F.2d 201, 203 (D.C. Cir. 1975). While in 1937 Congress

had indicated in legislative history that production for industrial

uses would be protected (primarily by a relatively low tax), see S.

Rep. No. 75-900, at 4; Smith, 269 F.2d at 218-20, we can find no

indication that Congress in 1970 gave any thought to how its new

statutory scheme would affect such production.

Given the 1937 intent to protect industrial uses and the

carrying forward of the definition, Owen colorably argues that the

1970 statute should also be read to protect production for

industrial uses by interpolating his distinction between

psychoactive and non-psychoactive strains of cannabis sativa. The

difficulty is that Congress' main vehicle for protecting

industrial-use plant production in 1937 was not its basic

definition of "marijuana," which included plants ultimately

destined for industrial use; it was the complex scheme of

differential tax rates and other requirements for transfers. That

is the regime that was drastically modified in 1970 in favor of a

broad criminal ban (subject only to federal licensing), a ban which

read literally embraces production of cannabis sativa plants

regardless of use.

The possibility remains that Congress would not have

adopted the 1970 statute in its present form if it had been aware

of the effect on cultivation of plants for industrial uses. But

that is only a possibility and not a basis for reading the new

statute contrary to its literal language, see Robinson, 519 U.S. at

340, at least absent a clear indication that Congress intended to

protect plant production for industrial use as it existed under the

prior tax statute. Nor, given Congress' enlargement of drug crimes

and penalties in recent years, would one bank on its adoption of an

exception strongly opposed by the DEA as constituting a threatened

loophole in the ban on illegal drugs.

Owen hints at one other argument that cries out to be

addressed. In a number of cases, the courts have extended the 1970

statute--arguably beyond its literal language--to embrace not only

the sativa species of cannabis but what may (or may not) be several

other cannabis species. The courts found that these plants can

provide the same level of THC as cannabis sativa grown for drug

use, expressed doubts that they are (or at least were regarded by

Congress as) species distinct from sativa, and felt confident that

Congress did not mean to distinguish among related major THC

agents. E.g., Honneus, 508 F.2d at 574-75.

If plants arguably beyond the literal language of the

statute are condemned because of their THC content, this gives Owen

some basis for contending that plants within the literal language

should be excluded based on their (comparative) lack of THC

content. But the symmetry is misleading. Reading the statute to

cover other possible species rests (as just noted) on a number of

grounds--not just THC content. By contrast, where cannabis sativa

plants are grown for industrial use, the statute's coverage is

supported alike by literal language, enforcement concerns and the

broad application of the definition under the 1937 tax statute.

Despite the myth that Congress intends every result

entailed by its statutes, new laws are often like jigsaw puzzles

whose pieces do not quite fit; some have to be squeezed into place

and there may be gaps in the pattern. But in this instance, on the

issue of whether the statute includes all cannabis sativa plants,

the considerations favor a literal reading of the statute and

preclude Owen's construction.

Affirmed.