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United States v. Plume

United States District Court, D. South Dakota, Western Division

March 28, 2016

ALEXANDER “ALEX” WHITE PLUME, PERCY WHITE PLUME, their agents, servants, assigns, attorneys, and all others acting in concert with the named Defendants, Defendants.




Defendant Alexander “Alex” White Plume (“defendant”) filed a motion and supporting brief pursuant to Fed.R.Civ.P. 60(b) seeking relief from the permanent injunction entered on December 30, 2004. (Dockets 124 & 125). The United States resists the motion. (Docket 136). For the reasons stated below, the defendant’s motion is granted.


To properly analyze defendant’s motion it is necessary to review the history of the relationship between the United States and Mr. White Plume. On August 9, 2002, the United States filed a complaint against Mr. White Plume and his brother, Percy White Plume, seeking a declaratory judgment and injunctive relief. (Docket 1). The government alleged the defendants were “manufacturing and distributing marijuana, in violation of 21 U.S.C.§ 856(a)(1).” Id. ¶ 1. The specific claim of the government was that the defendants Alexander White Plume and Percy White Plume as “enrolled members of the Oglala Sioux Tribe . . . in concert with others, have manufactured, planted, cultivated and grown marijuana on three successive crop years beginning with the 2000 crop year . . . . [and] have utilized federal trust lands for the manufacture, distribution and possession with the intent to distribute . . . marijuana.” Id. ¶ 17. The United States sought a permanent injunction enjoining the defendants from violating 21 U.S.C. §§ 841(a)(1) and 856(a)(1). Id. at pp. 9-10.

The defendants denied the government’s allegations and filed a counterclaim. (Docket 19). In their answer the defendants asserted, among other defenses, they were “cultivat[ing] industrial hemp exclusively for industrial or horticultural purposes” and were “exempt from [the] application of the Controlled Substances Act[1] . . . .” Id. ¶ 7. They alleged “industrial hemp . . . cannot be properly classified as a Schedule I substance under 21 U.S.C. [§] 812, since it contains no or insufficient THC[2] to create a hallucinogenic ‘high’ and therefore cannot have a high or any substantive potential for abuse.” Id. ¶ 8(a). The defendants sought declaratory and injunctive relief to prevent the government from seizing and destroying their industrial hemp crop. Id. at pp. 6-7.

On December 28, 2004, the court filed a memorandum opinion granting plaintiff’s motion for summary judgment.[3] (Docket 98). The court analyzed plaintiff’s motion for injunctive relief utilizing the Dataphase[4] factors. Id. at p. 5. Those factors are:

(1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant;
(3) the probability that movant will succeed on the merits; and
(4) the public interest.

Id. (citing Dataphase, 640 F.2d at 114).

Considering the first prong of the Dataphase test, the court found that “[t]he Controlled Substances Act [“CSA”] prohibits the cultivation of marijuana without a valid DEA [Drug Enforcement Agency] registration.[5] Hemp is included in the definition of marijuana. Defendants do not possess a valid DEA registration, nor are they exempt from the requirement of such registration.” Id. at p. 6. Based on the CSA and the defendants’ lack of a DEA permit, the court found the United States “need not show irreparable harm under the first prong of the Dataphase test.” Id.

In analyzing the second prong of the test, the court found that “[i]f a permanent injunction were granted, it would simply mean that defendants would have to obtain a valid DEA registration in order to grow their hemp crop. Thus, the harm of violating the statute outweighs the injury inflicted on defendants.” Id. Because injunctive relief[6] had been entered earlier, the third Dataphase factor was satisfied as the court had “already determined that the statute has been violated, [and] the likelihood of success weighs in favor of the government.” Id.

Addressing the fourth Dataphase factor, the public interest, the court found that “[h]emp is a variety of Cannabis sativa L.” and is subject to the CSA. Id. at p. 7. “[S]ince the hemp form and the drug form of marijuana are both Cannabis sativa L., and differentiate only chemically, it is not irrational that hemp would be included with marijuana as a Schedule I drug.” Id. at p. 10. The court found “that it is in the public’s best interest, and that it is their desire, to tightly regulate the cultivation of cannabis.” Id. at p. 7.

On December 30, 2004, the court filed an amended judgment permanently enjoining Alexander White Plume and other defendants “from cultivating Cannabis sativa L., otherwise known as marijuana or hemp, without a valid Drug Enforcement Administration registration.” (Docket 101). On May 17, 2006, the Eighth Circuit affirmed the decision of the district court. United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006); see also Docket 117-2.

On July 30, 2015, Alexander White Plume filed a motion pursuant to Rule 60(b) seeking to vacate the permanent injunction.[7] (Docket 124). Federal Rule of Civil Procedure 60 provides grounds for relief from a final judgment or order.

On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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