Kentucky's Department of Agriculture may get back its shipment of hemp seeds, seized a few days ago by the Drug Enforcement Administration, as early as next week.
"It sounds like a victory, but I'm not going to declare victory until those seeds go in the ground," Kentucky Agriculture Commissioner James Comer told The Huffington Post. "It was very positive today. But we've felt pretty good throughout this entire process over the last several weeks, and the DEA would come back and change again. I'm not celebrating. It will be a victory when I have those seeds in hand."
The hearing was the first in a lawsuit that Kentucky officials filed against the DEA on Wednesday asking for the return of the 250-pound shipment of seeds from Italy that the state had planned to use for an industrial hemp-growing pilot project. With the passage of the farm bill earlier this year, industrial hemp production for research purposes became legal in many states, but the DEA contends that importation remains illegal. On Tuesday, the agency said Kentucky would have to apply for a permit to get its seeds back.
"The court has instructed Kentucky's state agricultural department to apply for the appropriate DEA permits to obtain the hemp seeds at issue, which is the process that DEA proposed on May 13," a Justice Department official told HuffPost. "The DEA will continue to work with state officials so the state can lawfully obtain the seeds."
The state had planned to have a hemp planting ceremony on Friday to celebrate the launch of the pilot program.
During Friday's hearing, U.S. District Judge John G. Heyburn II demanded that the DEA state exactly what would be needed for KDA and the universities participating in the pilot program to gain access to the seeds. DEA officials said that KDA would need to fill out a narcotics license, as well as a memorandum of agreement with the university departments responsible for planting the seeds and with any private land owners where the seeds will be planted.
"We can get that taken care of in a couple hours," Comer told HuffPost. "We're going to go back to court Wednesday, and supposedly once we turn those documents in we'll get our seeds. But we've been down this road before."
Comer said he was pleased with Heyburn's handling of the hearing.
"The judge isn't going to leave us hanging until we get those seeds. He understands what we've been through with this," said Comer. "Judge Heyburn was very hard on the DEA."
Kentucky officials said earlier in the week that they believed the DEA had agreed to return the seeds. But then the DEA reversed the deal, said Holly Harris VonLuehrte, a senior official at the Kentucky agriculture office. In a letter Tuesday night, obtained by HuffPost through an open records request, the DEA told the Kentucky Department of Agriculture that the state has to apply for a permit to import Schedule I drugs before it can gain access to the seeds.
"We were told in multiple phone calls that we wouldn't have to do this Schedule I import permit," said VonLuehrte, adding that agreeing to the DEA's demand would be tantamount to endorsing the agency's position on hemp as an illegal Schedule I drug, a view that many states dispute. "Industrial hemp is not a Schedule I controlled substance. We're not going to execute a document that violates federal and state law."
The hemp plant is related to marijuana, but doesn't contain the psychoactive ingredient that generates a high. Industrial hemp is used in products ranging from textiles to cosmetics.
The suit, filed Wednesday in the U.S. District Court for the Western District of Kentucky in Louisville, names the DEA, the Department of Justice, Customs and Border Protection and Attorney General Eric Holder, according to the complaint, which HuffPost obtained.
"The cultivation of industrial hemp ... is lawful," reads a motion filed by the Kentucky Department of Agriculture. "The public interest is served by allowing the KDA and Kentucky research universities to investigate the use of industrial hemp as a cash crop in Kentucky. The public interest is not served by allowing unaccountable federal agencies to exercise arbitrary and capricious powers, not rationally related to carrying out any legitimate governmental purpose."
Currently, 22 states have passed pro-hemp legislation and another 11 states have introduced it in some form. Fourteen states have removed barriers to hemp production and are able to pursue industrial hemp cultivation per the parameters of the farm bill.
CLARIFICATION: An earlier version of this story implied that the Kentucky Dept. of Agriculture had won or gained ground in their hearing, however, in the hearing, the department simply got closer to obtaining their seeds. This story has been edited to reflect that difference.