Calling a Drug Enforcement Administration's earlier offer to release hemp seeds a "bait and switch" tactic, the Kentucky Department of Agriculture on Wednesday sued the U.S. Justice Department.
Agriculture Commissioner James Comer filed a lawsuit in U.S. District Court in Louisville against the Drug Enforcement Administration, Customs and Border Protection, the Justice Department and Attorney General Eric Holder.
Comer is seeking a temporary restraining order and preliminary injunction to force the U.S. Customs Service to release 250 pounds of Italian hemp seeds so they can be planted in Kentucky this spring.
"We had no other choice," said Comer's chief of staff, Holly Harris VonLuerhte.
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According to the lawsuit, the state's hemp research will "suffer immediate, irreparable harm" if the seeds aren't released soon. Comer plans to ask for a hearing on the KDA's motions as early as Friday.
On Tuesday, Comer had negotiated with the DEA to clear the way for the state to get the hemp seeds with an expedited import permit.
But after receiving the DEA's letter about 9:30 p.m. Tuesday, reading the particulars and consulting legal authorities, Comer reconsidered.
The DEA would require the state to get a "controlled substances" import permit, and that would set a precedent for other states, VonLuehrte said.
Comer's office contends that the federal Farm Bill that Congress passed earlier this year, which will allow state departments of agriculture to grow test plots, means hemp is no longer considered a controlled substance. Marijuana, a related plant that has much greater levels of high-inducing THC than hemp, remains a controlled substance, although the Justice Department has backed off enforcement in states that have passed laws legalizing it.
"We're deeply concerned over who would have control if we say" it's a controlled substance, VonLuehrte said. "We don't think it is, and we don't think Congress does either."
According to the DEA's letter, only state departments of agriculture or institutions of higher education may grow hemp, and they "may not assign to others the authority to grow and cultivate industrial hemp."
The Agriculture Department is planning several research projects in conjunction with universities across Kentucky. The crop needs to be planted by June 1.
At least one project will involve private growers. It is expected to be planted Friday in Mount Vernon with seeds that were previously obtained elsewhere.
Given the DEA's statement that private growers cannot be authorized to grow hemp without registration under the Controlled Substances Act, it is unclear whether authorities plan to intervene in Friday's planting.
The DEA's offer appeared to be "a bait and switch, an elaborate ruse to permanently delay these pilots," VonLuehrte said. "We no longer feel the DEA is negotiating with us in good faith."
She said Kentucky must act in the best interest of potential hemp farmers everywhere, not just so the state can get its seeds in time.
"Other states want to move forward," she said. "The goal is to get a uniform policy where nobody has to go through this again. It should be Kentucky, because we have the history and such a supportive agricultural community."
Justice Department spokeswoman Ellen Canale issued a statement shortly before the suit was filed in Louisville: "The DEA has been and will continue to work with state officials to resolve outstanding issues related to the importation of hemp seeds. DEA has advised Kentucky it's necessary to apply for the appropriate permit, which the DEA has agreed to review on an expedited basis."