United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
Thursday, January 17, 2019, this Court entered a Memorandum
Opinion and Order (ECF No. 60), granting Defendants Matthew
Mallory (Mr. Mallory) and Commonwealth Alternative Medicinal
Options, LLC's (collectively the “CAMO
Defendants'”) Motion for Relief from the General
Order staying civil actions in which the United States is a
party. In the Memorandum Opinion and Order, the Court lifted
the stay and dissolved the Preliminary Injunction previously
entered in this case. The Court further stated that
Defendants could immediately transport the product to a
facility in Pennsylvania to be processed and sold. At the end
of that same business day, the United States filed its
current Motion to Stay the Memorandum Opinion and Order. ECF
Friday, January 18, 2019, the Court entered an Order granting
the United States' motion, and the Court stayed
dissolution of the Preliminary Injunction until today,
Wednesday, January 23, 2019. In the meantime, the Court
directed an expedited briefing schedule of the issues. With
briefing now complete, the Court finds in favor of
motion, the United States argues the Court should stay
dissolution of the Preliminary Injunction for two reasons.
First, the United States asserts the product needs to be
tested to determine if it actually is “industrial
hemp.” Second, the United States asks for time to
determine if it will appeal the Court's decision to
dissolve the Preliminary Injunction.
their Opposition to the motion, the CAMO Defendants contend
that it is the first time the United States has ever asserted
that the product may exceed the THC level to be classified as
hemp. The CAMO Defendants insist the United States has no
foundation for this claim and it has not premised any of the
relief it previously has requested on this new allegation.
Moreover, the CAMO Defendants argue oversight for testing
falls within the jurisdiction of West Virginia's
Commissioner of Agriculture, not the United States.
See 7 U.S.C. § 5940; W.Va. C.S.R. §
61-29-1 et seq. (Section 1.1 of § 61-29-1
providing that “[t]his rule establishes requirements
for the licensing, cultivating, testing, supervision,
production, processing and sale of industrial hemp in West
Virginia through the issuance of Research and Marketing
Cultivation Program Licenses as designated in Section 7606 of
the Agricultural Farm Act of 2014 (the Farm Bill)”).
Reply, the United States argues that, as hemp is defined by
federal law, the controlling question arises under federal
law, not state law. Moreover, the United States insists it
was the CAMO Defendants' obligation to have the crop
tested before any of it could be used. See West Virginia
Dep't of Agric. Review Process Review, United
States' Ex. 7 of Prelim. Inj. Hr'g, at 2, ECF No.
19-7 (providing that “the applicant is responsible for
notifying the WVDA 30 days before the projected harvest date.
The WVDA will arrange to visit and collect sample/s to verify
the THC content is below 0.3%”); Attach. to Mot. to
Dissolve Ex Parte TRO and in Opp'n to Prelim. Inj.,
at 3 (same); ECF No. 16-1. Despite this obligation, the
United States asserts the crop at issue here was not tested
as required. Moreover, as the crop was transported to
Pennsylvania during the time the stay was dissolved and the
new stay was issued, the West Virginia Department of
Agriculture no longer can perform the testing. Therefore, the
United States seeks to conduct that testing, which it claims
can be done in an expeditious fashion. While the testing is
done, the United States seeks an order that the crop not be
further processed, sold, or distributed until the test
results are returned and reviewed by the Court.
consideration, the Court finds that, since this action was
filed in September, the United States has never directly
challenged the THC level in the plants until now.
Additionally, the United States has not complained that
Defendants failed to have the crop tested, nor has it sought
to test the product to ensure it meets the statutory
definition of “industrial hemp.” If the United
States truly believed the product exceeded the THC limits, it
could have moved the Court to require testing long before
now. Instead, the United States waited until the CAMO
Defendants will face certain harm by continuing the
injunction before it requested the testing. Given these
circumstances, the Court is not persuaded by the United
States' argument that the Preliminary Injunction should
continue past today.
the United States' argument that it wanted some time to
consider whether or not to appeal this Court's decision,
the United States now has had nearly a week to contemplate
its options. In fact, the United States makes no arguments in
its Reply that more time is needed. Therefore, the Court will
not extend the Preliminary Injunction on this basis.
for the foregoing reasons, the Court DENIES
the United States' request to extend the stay and allows
the current stay to expire at the end of the day as provided
by the Order entered on January 18, 2019.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented
To be classified as “industrial
hemp, ” it must have a THC level that is not more than
0.3%. 7 U.S.C. § 5940(b)(2) (“The term
“industrial hemp” means the plant Cannabis sativa
L. and any part of such plant, whether growing or not, with a
delta-9 tetrahydrocannabinol concentration of not more than
0.3 percent on a dry weight basis.”).
In support of its position, the United
States also points to a newspaper article in which counsel
for Mr. Mallory purportedly said that his client had no
problem with testing the crop. See Jake Zuckerman,
Judge ‘increasingly doubtful' of feds'
lawsuit against hemp farm, West Virginia Gazettemail,
Jan. 18, 2019,