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
203 F.3d 1
January 28, 2000, Decided
SUBSEQUENT HISTORY: As Amended March 28, 2000. Certiorari Denied
October 2, 2000, Reported at: 531 U.S. 828.
PRIOR HISTORY: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge.
COUNSEL: 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.
JUDGES: Before Selya, Boudin and Lynch, Circuit Judges.
OPINION BY: BOUDIN
OPINION
[*3] 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. [Footnote 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.
See generally Amala Raman, The Cannabis Plant, in Cannabis 29, 32 (David T. Brown
ed., 1998); Robert Connell Clarke, Marijuana Botany 159-60 (1981); John Taylor,
Nomenclatural Nonsense and Legal Marihuana Plants, in The Species Problem in Cannabis:
Science & Semantics 96, 97-99 (Ernest Small ed., 1979), 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 derived from different
strains and 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. [Footnote
2]
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).
[Footnote 3] 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 [*4] 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, 119 L. Ed. 2d 351, 112 S.
Ct. 2130 (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, 133 N.H. 217, 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 [*5]
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, 95 L. Ed. 2d 415, 107 S. Ct. 1862 (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, 1999 U.S. App.
LEXIS 32451, 1999 WL 1128676, at *5-6 (1st Cir. 1999). And, because declaratory
and injunctive relief is discretionary, Reno v. Catholic Soc. Servs., 509 U.S. 43,
57, 125 L. Ed. 2d 38, 113 S. Ct. 2485 (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 [*6] forced to apply for a license.
Cf. Leedom v. Kyne, 358 U.S. 184, 188-89, 3 L. Ed. 2d 210, 79 S. Ct. 180 (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, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (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:
All 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, 86 L. Ed. 2d 1, 105 S. Ct. 2458 (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, 110 L. Ed. 2d 563, 110
S. Ct. 2658 (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, 136 L. Ed. 2d 808, 117 S. Ct. 843 (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.
[Footnote 4] 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, 126 L. Ed. 2d 49, 114 S. Ct. 80 (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.
[*7] 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, 106 U.S. App.
D.C. 26, 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,
168
U.S. App. D.C. 305, 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. [Footnote 5]
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.
[*8] 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. [Footnote 6] 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.