Attorney says dismissal of hemp suit is a victory for hemp industry in West Virginia

By Kyla Asbury | Mar 14, 2019

HUNTINGTON – Charleston attorney Carte Goodwin secured a victory recently when U.S. District Judge Robert Chambers ruled against U.S. Attorney Mike Stuart in a case involving hemp in the U.S. District Court for the Southern District of West Virginia at Huntington.

"This is a significant win for the hemp industry not only in West Virginia but the United States," Goodwin said in a statement provided to The West Virginia Record. "Hemp is not the same as marijuana and should not be treated the same."

Goodwin said hemp is an agricultural product that opens a new source of revenue for farmers and businesses across the country.

"Frost Brown Todd’s attorneys, including our Lexington member-in-charge and head of our hemp industry team Jonathan Miller, have spearheaded the efforts to launch the industrial hemp pilot program and legalize hemp," Goodwin said. "We are proud to continue those efforts representing hemp entrepreneurs everywhere."

Carte Goodwin  

In his ruling, Chambers dismissed the lawsuit filed by Stuart against hemp farm owners in Mason County, stating that hemp was supposed to be exempt from the Controlled Substance Act (CSA)

"Under the 2014 Farm Bill, there is no requirement that hemp seeds be imported from international sources, and it was contemplated that, if in compliance, industrial hemp and industrial hemp seeds could be shipped domestically," the March 6 memorandum opinion and order states. "As an exception to the CSA, it also was not necessary for qualifying individuals operating under a state’s pilot program to be registered with the DEA."

The 2018 spending bill, which was passed before the seeds were shipped in this case, made it clear that Congress did not want enforcement agencies interfering with the growth, cultivating and marketing of industrial hemp and industrial hemp seeds, Chambers wrote.

"Quite simply, industrial hemp is not a controlled substance under the CSA," the opinion states.

Chambers said on the same day the action was filed, the West Virginia Department of Agriculture (WVDA) sent a letter to the United States Attorney’s Office responding to a letter the office sent the previous week.

"Although the WVDA recognized in the letter that, if the United States Attorney’s Office is 'convinced that the transport of seed across state lines is illegal, then nothing in ... (West Virginia law) would purport to shield Mr. (Matthew) Mallory from prosecution by' the United States, the WVDA rejected the United States’ request it summarily revoke Mr. Mallory’s permit," Chambers wrote.

Although the United States believed there were material violations of West Virginia’s pilot program, the WVDA, which is the department authorized under federal and state law to administer the program, did not, Chambers wrote.

Stuart filed a lawsuit against Matthew Mallory, Camo Hemp WV, Gary Kale and Grassy Run Farms on Sept. 11 in the U.S. District Court for the Southern District of West Virginia at Huntington.

The suit claimed Mallory filed an application for research and marketing cultivation of industrial hemp with the West Virginia Department of Agriculture back in April and listed the business name as Camo Hemp WV. He then received the license to participate in the West Virginia industrial hemp pilot program.

Mallory's application indicated that there would be security cameras, a fence, a chain-locked gate and signage would be installed, but Mallory did not install the security measures.

The suit claimed Mallory also agreed to purchase the seeds for the project through the West Virginia Department of Agriculture but instead purchased the seeds from Hickman Seed & Grain in Clinton, Kentucky.

Mallory ordered and had delivered the hemp seeds a day prior to the date he had signed the application with the West Virginia Department of Agriculture, according to the suit.

The suit also states Mallory intended to harvest the hemp plants and then ship the top portions of the plants to Pennsylvania.

"The shipment of any part of a cannabis plant, including seeds of a cannabis plant, across state lines, is a violation of the CSA," the complaint stated.

The suit claimed the defendants engaged in the manufacture of, distribution of and possession with intent to distribute marijuana in violation o the CSA and other federal laws.

West Virginia law allows for the cultivation, sale and purchase of industrial hemp, but hemp must be comprised of less than 1 percent THC. 

U.S. District Court for the Southern District of West Virginia Case number: 3:18-cv-01289

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