Native Sun News Today: Flandreau Santee Sioux Tribe must wait to grow hemp

Friday, June 14, 2019

Federal judge denies Flandreau hemp injunction

By James Giago Davies

Native Sun News Today Contributing Editor

FLANDREAU— A few weeks back the Flandreau Sioux Tribe filed suit against Secretary of Agriculture Sonny Perdue. Last week the Tribe lost an emergency motion for a preliminary injunction against the United States Department of Agriculture (USDA).

The USDA had refused to sign off on the Tribe’s hemp growing operation, and having already committed critical resources to that project, and looking at a closing planting window, the Tribe wanted a Temporary Restraining Order (TRO) to proceed with hemp production until a ruling on their suit against Perdue is handed down. But Federal Judge Karen Schrier ruled against the Tribe.

Citing the recent government shutdown, the USDA asserted they had not had enough time to establish new regulations based upon changes between the 2014 Farm Bill and the 2018 Farm Bill, which approves the growing and transportation of hemp. They stated that until such changes are implemented, they did not have to comply with the mandatory 60-day response time to the submitted Tribal Plan.

UPDATE: The judge denied the Flandreau Santee Sioux Tribe’s request to start growing hemp. While the tribe will suffer “irreparable harm” it must wait for the Department of Agriculture to finalize hemp regulations, the judge ruled. Decision here: https://t.co/217fZpu2nI
— indianz.com (@indianz) June 7, 2019

On May 23, 2019, the Tribe filed a complaint in United States District Court for the State of South Dakota, to sue the Secretary of Agriculture Perdue. As the spring window for crop planting closes, the Tribe found itself between a rock and a hard place concerning hemp.

Following the guidelines of the Agricultural Improvement Act of 2018, which amended the 1946 Agricultural Marketing Act (AMA), removing hemp as a controlled substance and allowing legal hemp production, the Tribe submitted a plan to grow hemp to the United States Department of Agriculture (USDA), received on March 8, 2019. Secretary of Agriculture Sonny Perdue had 60 days to approve the plan and failed to do so.

In an acknowledgement letter to the Tribe, dated April 24, 2019, Perdue’s rationale was that the USDA is required by law to approve the Tribal Plan, because it meets all the criteria, but only after the has had a chance to finalize and publish it in the Federal Register. Tribal hemp production could then proceed in the spring of 2020, as Perdue did not feel compelled by the language of the AMA (section 297B) to approve the plan within 60 days.

The Tribe asserts that the Secretary has overreached his power. In the introduction of their supporting brief for a Temporary Restraining Order (TRO) (so that they can proceed with hemp production before the crop planting window closes), the Tribe asserted: “Completely ignoring the will of Congress and the very statute it is here tasked with implementing, the USDA has violated its mandatory review deadline and attempts to assume power not delegated to it by Congress to the ongoing harm of the Tribe.”

The Tribe said they have already committed land, resources and money to this hemp growing season, and that the Tribal Plan met “the seven discrete requirements laid out by Congress.” They also point out the language states clearly that Tribes and states “shall only be required” to meet those seven steps.

Perdue is not alleging they did not, only that the USDA does not have to act within the 60-day mandatory review deadline. The Tribe points out in their complaint that the words, “‘shall only be required to include’ were intentionally added by Congress to specifically limit the Secretary’s authority to impose additional requirements on states and tribes.”