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Patrick Goggin 

This article 
appeared in the 
Fall 2004 edition 
of Hemphasis 

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Hemp Industries Association whips DEA!
9th Circuit says, "Let 'em eat hemp. And wear it, and shampoo with it. And build houses, and heat them with it."

by Patrick D. Goggin
Patrick Goggin is a San Francisco attorney, experienced in the hemp wars.

On September 17th, 2003, I had the distinct honor to sit at counsel table during oral arguments in the matter of the Hemp Industries Ass'n. (HIA), et al., v. Drug Enforcement Agency (DEA), et al., before the United States Court of Appeals for the Ninth Circuit in San Francisco, California. In the case, HIA, et al., essentially challenged the DEA's attempts to push through regulations making it illegal for Americans to consume any hemp products that contain trace quantities of THC. Any opinions expressed here are mine and do not represent those of the hemp industry in any way.

Michigander Trena Moss cards hemp at 3rd Annual Lakota Hemp Days, Aug. 2004.

It was twenty to four as I entered the Court, crossing into the land of "lawyers only" to join Joe Sandler at the counsel table. Sitting before me were copies of two mid-1990s cases that DEA counsel had just sprung on us. This had never happened to either Joe or me before. After 20 minutes of confusion, we concluded that, more than anything, this was a smoke screen--a final attempt by the DEA to knock us off our center--for this was our game to lose.

Mark Higgins, Hays KS, strips leaves and small branches
from feral hemp plant at Lakota Hemp Days, Aug. 2004

Joe set the distraction aside, strode to the podium at about ten after four, and before twenty of his words echoed through the marble-rich chamber, Judge Alex Kozinski (a Polish-born conservative libertarian judge appointed by Reagan who wrote the two-paragraph dissent in the Court's June 30, 2003 opinion granting our first Petition for Review, now being referred to as Hemp I) began challenging Joe in a not-so-threatening manner. Basically, he wanted Joe to articulate why DEA had to go through a scheduling action to ban hemp foods. Joe succinctly articulated why: because Congress clearly exempted hemp stalk, seed and oil from the definition of Marijuana when it passed the Marijuana Tax Act in 1937.

It was at about 4:20 that Kozinski posed the hypothetical, "what if they found a plant in the Amazon that was full of THC, would that be covered under the Controlled Substances Act, under THC?"

Rick Martin, Sturgis SD, strips leaves and small branches
 from feral hemp plant at Lakota Hemp Days, Aug. 2004

Joe calmly answered, "No, a scheduling action would be required because DEA would be adding a new substance to the CSA." During Joe's presentation, the two other judges on the panel, both women appointed by Carter (Shroeder, the Chief Justice, and Fletcher, the drafter of the majority opinion in Hemp I), remained silent, all the while shaking their heads at times in response to some of Kozinski's questions.

After reserving five minutes of rebuttal time, Joe yielded the podium to DEA counsel Daniel Dormont. Kozinski let him have it. Virtually all of his twenty minutes was spent fending off Kozinski who was just not persuaded that Congress in 1937 failed to clearly exempt hemp seed and oil from marijuana's definition. At one point he remarked, "You might be clear, but you're not persuasive." On the other side, Dormont was hit by Fletcher, who questioned the DEA's policy reasons for wanting to ban items that are clearly harmless. She referred to DEA as being "disingenuous."

Bob Ramsey, Drug Policy Forum of Texas, breaks
hemp stalks to separate fiber from hurds at
 Lakota Hemp Days, Aug. 2004

Knowing that he couldn't assert the true policy reason--that being that hemp foods need to be banned because their legitimization is the first step towards growing cannabis legally in this country (see ONDCP April 10, 2000 memo to DEA)--and while conceding that hemp foods were not dangerous, Dormont argued that THC could be extracted from stalks and this hypothetical wasn't covered under the definition of marijuana. Kozinski would have none of it, and went onto the poppy seed exception carved out by Congress, referring to his morning poppy seed bagel. Dormont just couldn't overcome the absurdity of what DEA was trying to do. Before letting Dormont sit down, Kozinski pleaded with him, "How are you going to save the bagel?"

While listening to Dormont struggle, I keyed Joe into an important point to assert on rebuttal that would hammer the proverbial nail in the coffin; in 1937, Congress wasn't aware that THC is the so-called "narcotic element" in cannabis that it was trying to ban. Thus, they referred to the "narcotic element" generically as "resin." This point drove the stake through Dormont's attempt to distinguish between resin scraped from the bud of the plant and THC extracted from the stalk. Joe delivered on the point and the gavel soon resounded throughout the chamber, the prelude to the three black robes vanishing behind the rear door.

Ruth Fahrbach, Taos Hemp owner, lays green hemp
 stalks in Wounded Knee Creek to ret
at Lakota Hemp Days, Aug. 2004

Within seconds, Dormont was over our table grinning, asking for a bet that we would have the same split of the judges as in Hemp I.

I shrugged my shoulders, grinned back and said, "I don't know, I think we might've gotten Kozinski. I think I'll take that bet."

On February 6, 2004, my hunch became reality. The panel ruled 3-0 in our favor, finding that hemp foods are clearly exempted from the 1937 definition of marijuana. Hemp foods are now fully legal, as we all knew they should be! We will soon see the hemp foods industry soar to new heights and beyond. This victory could give the hemp movement the momentum needed to achieve its ultimate goal--the re-emergence of industrial hemp production in this nation.

The government now has until September 26, 2004, to decide whether to seek Supreme Court review of this decision. Even if they decide to take the case up, their chances are slim. The high Court accepts only one case in fifty for review. I say to the government, "Give it your best shot." The Supreme Court is the ultimate stage to tell a massive listening audience hemp's 20th & 21st century's stories.

Editor's note: The DEA chose not to pursue the matter. It's still legal to sell, buy and eat hemp food in the United States. We just have to ask the Canadians if they'll grow it for us.

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