10th Circuit considers whether or not to acknowledge proper of hemp producers to sue for plant confiscation |

One day after Francisco Serna passed through Denver International Airport, he filed a lawsuit in federal court with a three-sentence description of what happened when he attempted to carry his hemp plants through security.

“I was travelling with 32 plant clones or rooted clippings compliantly produced under Subtitle G of 2018 Farm Bill Act,” Serna wrote in March 2021. “The plants were documented with a certificate of compliance to be under 0.3% THC, which is the defining criteria for hemp under the Act. At the TSA checkpoint, Officer Jaramillo confiscated the plants after speaking with Detective Casper, who stated they have a policy of confiscating any plants above 0%.”

Serna, who is from Texas, did not ask for money. He only wanted Denver police to stop interfering with the lawful transport of hemp.

Now, the federal appeals court based in Colorado is considering a weighty legal question about the rights of tens of thousands of hemp growers in the U.S. Specifically, when Congress set up a system for states and Native tribes to regulate hemp, did it also empower people to sue when states interfere with hemp transport?

For Serna, the answer is yes.

“Looking at the congressional intent here, the intent is to protect hemp farmers who are attempting to transport their goods interstate,” Daniel Pomerantz, a student attorney representing Serna, told a three-judge panel of the 10th U.S. Circuit Court of Appeals on Wednesday.

But some members of the panel expressed skepticism that the general guarantee of interstate transport also meant to give hemp producers themselves the ability to challenge violations of that guarantee in court, known legally as a private right of action.

“It talks about states and Indian tribes — the regulated entities,” Judge Carolyn B. McHugh said. “We can tell that this statute is written in a way that it does not create a private right of action.”

When Congress enacted the 2018 Farm Bill, which broadly addresses agricultural and food policy, it removed hemp from the Controlled Substances Act. Although hemp and marijuana are the same plant species, marijuana is still illegal at the federal level because of its higher concentrations of the psychoactive substance tetrahydrocannabinol. In contrast, hemp plants that have a concentration of less than 0.3% THC are now permitted.

Hemp is an ingredient in a variety of food and other consumer products. U.S. Senate Minority Leader Mitch McConnell, R-Ky., who backed the legalization of commercial hemp in the 2018 Farm Bill, signed a version of the legislation with a pen made from hemp.

The law set up a regime for states and tribal nations to be the primary regulators of hemp production, if they choose to do so. Under one provision labeled “Interstate Commerce,” the law directed that no state or tribe “shall prohibit the transportation or shipment of hemp or hemp products.”

However, there was no indication what the consequence would be for a violation.

Serna, representing himself in court, sued the City and County of Denver and Officer Anselmo Jaramillo, who confiscated his hemp plant. But U.S. Magistrate Judge Michael E. Hegarty analyzed the law and found Congress gave no private right of action to hemp producers like Serna to sue.

“Rather, these sections of the 2018 Farm Bill focus exclusively on the Department of Agriculture and the states and Indian tribes it will regulate. The lack of focus on any individuals is more evidence that there is no congressional intent to create a private right of action,” Hegarty wrote, recommending the dismissal of Serna’s lawsuit.

In reviewing the magistrate judge’s recommendation, U.S. District Court Judge William J. Martínez believed the law created a “protected class” for hemp growers. Nevertheless, he agreed there was no way for growers themselves to remedy any violation of their right to interstate transportation. Martínez dismissed Serna’s lawsuit and barred him from refiling it in any form.

On appeal, Serna’s lawyers argued if Congress prohibited states from violating people’s rights, that implied there was a method of forcing them to comply with the law.

The Farm Bill “bestows a right upon hemp farmers to be free from interference when transporting their goods interstate, and that right was especially created for their benefit,” wrote Matthew R. Cushing, representing Serna.

Denver countered there was no evidence Congress intended the Farm Bill’s language to cover situations where police officers confiscate hemp while mistakenly believing it to be marijuana. The city cited the 2001 ruling of the U.S. Supreme Court in Alexander v. Sandoval. Decided by 5-4, the majority of justices found an Alabama woman could not sue for her state’s violation of a federal antidiscrimination law.

“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy,” wrote Justice Antonin Scalia. “Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be.”

During oral arguments, McHugh voiced her belief that if Congress has created a right under the law, there is a presumption that a remedy exists to enforce violations of it. Assistant City Attorney Conor D. Farley, representing Denver, said he did not believe a right for hemp producers existed, but even if it did, a remedy is not automatic.

“This case is a very good example,” he explained, “even if there was to be a right, when you look at the clear statutory intent, there is no remedy.”

Pomerantz, the student attorney for Serna, argued that if the appellate panel did not find the Farm Bill enabled his client to sue, Serna should be allowed to amend and refile his lawsuit to assert other violations of his legal rights, such as the Fourth Amendment’s prohibition on unreasonable seizures.

“As of today, we’re about 18 months from the point where these events took place,” Pomerantz said, noting the statute of limitations in Colorado is two years. “He won’t be able to refile and his rights will have been violated and there will have been no way to vindicate them.”

Serna told Colorado Politics last year that he intended to appeal the dismissal of his case to the 10th Circuit to obtain a ruling favorable to the rights of hemp producers.