The allegations strongly suggest the ODA messed up
A hemp grower in Jackson County, Oregon has filed suit against the Oregon Department of Agriculture (ODA) over failure to issue hemp registrations and against the Jackson County Sheriff to prevent the destruction of its hemp.
We’ve written on about the difficulties hemp farmers face when law enforcement seeks to destroy, or does destroy, a hemp crop or harvest:
- Hemp Litigation: Does Qualified Immunity Protect Law Enforcement Who Wrongly Destroy Hemp?
- Oregon Cannabis: Federal Court Dismisses Claims by Oregon Hemp Company Against Police for Hemp Seizure and Destruction
As these articles explain, the likelihood of recovering damages from a federal, state, or local government after law enforcement wrongly seizes or destroys hemp is not great. That’s because various doctrines of immunity provide the government and its agents a broad shield against most claims.
So what is a hemp farmer to do if they reasonably believe they are at risk of having their hemp seized and destroyed? One answer is to file a lawsuit seeking declaratory relief along with a motion for a temporary restraining order that prohibits law enforcement from acting against the hemp. That’s what happened here.
The allegations strongly suggest the ODA messed up. The plaintiff-company is owned and operated by a combat veteran who grows hemp for CBD to treat post-traumatic stress disorder and works to provide resources to veterans experiencing a variety of PTSD, CPTSD, and other disorders and mental health challenges. The plaintiff had a registration to grow hemp in 2020 and leased several properties on which to do so. The plaintiff had no issues in 2020 (e.g. administrative or other violations) and all of its hemp passed pre- and post-harvest testing.
In May 2021, plaintiff alleges it submitted an application for the 2021 season and paid the registration fee for each property. The ODA cashed the checks soon after they were submitted. By June the plaintiff had not received its registration, so he called the ODA and was told that his application would be approved in a matter of days. Plaintiff then purchased hemp clones and put a few plants in the ground, relying on the statements from the ODA that he’d soon have the registrations. But none were forthcoming.
In early July, the Jackson County Sheriff’s Department visited one of the properties and demanded access to greenhouses located at the property. They were told how to gain access but left without conducting any inspection. On July 20, a woman who refused to identify herself other than as an ODA agent visited the property and demanded that the greenhouses be destroyed along with the hemp plants inside. The person also told plaintiff they were subject to criminal liability under HB 3000. (See here for our take on HB 3000).
After these events, plaintiff visited the ODA offices in Salem, Oregon on July 21 to inquire about his applications. An ODA employee told plaintiff the applications were complete but the ODA was short-staffed and they expected the registrations to be issued in a matter of days. Plaintiff then spoke with another ODA representative who stated the applications were “on hold” because Jackson County law enforcement had told the ODA the plaintiff was growing marijuana. This was news to plaintiff, who explained that he had grown hemp in 2020 under an ODA registration and simply sought to do so again.
Now very concerned that law enforcement might destroy his crop, plaintiff filed a lawsuit against the ODA and Jackson County Sheriff. Plaintiff sought a declaration that any prosecution for certain activities related to hemp prior to the enactment of Section 41 of House Bill 3000 (signed into law July 29, 2021) violated the Ex Post Facto Clause of the Constitution. Plaintiff also petitioned for an order compelling the ODA to issue the hemp registrations.
But filing a lawsuit alone would not guaranty the immediate safety of plaintiff’s hemp.
So along with filing the complaint, plaintiff filed an ex parte motion for temporary restraining order (“TRO”). An “ex parte” motion means a motion filed without notice to the other side, this is typically used only in emergency situations where there simply isn’t time to go through the ordinary steps involved in filing a motion. The movant essentially tells the judge “look, if you don’t act now and order the subject of the motion to do something (or not do something), I will suffer irreparable harm.” Here that was an imminent threat of having property (hemp) destroyed.
This was a smart procedural move by plaintiff’s lawyers. They filed the motion on July 23 and were granted a TRO that same day. The TRO orders the Sheriff to cease any efforts to seize or destroy plaintiff’s hemp. The TRO also orders the ODA to issue the registrations by July 28 or “show cause” to the Court why such documentation should not be issued.
But a TRO does mean plaintiff has won. The TRO is temporary by its very nature, so now the parties must appear on July 28 so that the Court may decide whether the TRO should continue as the lawsuit progresses– essentially, whether to turn the TRO into a preliminary injunction or not. At the “show cause” hearing, both sides may present evidence and testimony to support their claims. Assuming the allegations in the complaint are supported by verifiable, substantial evidence, here’s hoping that plaintiff prevails and may continue in his quest to support veterans by providing access to CBD. (Note: This lawsuit was filed by our colleagues at the Green Light Law Group.)
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