United States District Court, D. South Dakota, Southern Division
FLANDREAU SANTEE SIOUX TRIBE, A FEDERALLY RECOGNIZED INDIAN TRIBE; Plaintiff,
UNITED STATES DEPARTMENT OF AGRICULTURE, HON. SONNY PERDUE, IN HIS OFFICIAL CAPACITY; AS SECRETARY OF AGRICULTURE, Defendants.
ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING
ORDER OR PRELIMINARY INJUNCTION
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Flandreau Santee Sioux Tribe, moves for a temporary
restraining order or preliminary injunction enjoining
defendants, the United States Department of Agriculture
(USDA) and Sonny Perdue, Secretary of Agriculture, from any
action that interferes with the Tribe's hemp production.
Docket 4. The Department of Agriculture and Secretary Perdue
resist the motion. Docket 23. For the following reasons, the
motion for a temporary restraining order or preliminary
injunction is denied.
December, the Agriculture Improvement Act of 2018, known as
the 2018 Farm Bill, was signed into law. Agriculture
Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490.
The bill removed “hemp” from Schedule I of the
Controlled Substance Act to allow for hemp production by
states and tribes under federal law. See 7 U.S.C.
§ 1639o(1). The statute permits states and tribes to opt
for either (1) primary regulatory authority, or (2) USDA
authority over the proposed hemp production. See 7
U.S.C. § 1639o-1639s. A state or tribe requesting to
have primary authority over its production of hemp is to
submit a plan to the Secretary of Agriculture. 7 U.S.C.
§ 1639p. Known as a “297B plan, ” the plan
must include seven categories outlined in the statute. 7
U.S.C. § 1639p(a)(2)(A). The plan is to be approved or
disapproved by the Secretary of Agriculture “not later
than 60 days after receipt.” 7 U.S.C. §
1639p(b)(1). If a state or tribe does not wish to submit a
plan, the state or tribe has a second option and can seek to
produce hemp under the USDA plan. 7 U.S.C. § 1639q.
Similarly, if a plan is not approved because it was
disapproved by the Secretary of Agriculture or was never
submitted, the state or tribe's hemp production is
subject to the USDA plan. 7 U.S.C. § 1639q(a)(1).
Finally, the 2018 Farm Bill provides that the Secretary of
Agriculture has explicit authority to set “regulations
and guidelines that relate to the implementation of [7 U.S.C.
§] 1639p and [7 U.S.C. §] 1639q.” 7 U.S.C.
February 27, 2019, the USDA issued a notice that the agency
had begun gathering information to promulgate rules and
regulations related to the 2018 Farm Bill and the production
of hemp in the United States. Docket 1 ¶ 15. The notice
advised growers that USDA planned to issue regulations
relating to the production of hemp in the fall of 2019.
Id. ¶ 52. On March 8, the Flandreau Santee
Sioux Tribe submitted its proposed 297B plan to the USDA to
produce hemp under 7 U.S.C. § 1639p. Id. ¶
13. The submitted plan referenced Title 30 of the Flandreau
Santee Sioux Tribe's Law and Order Code, wherein the
Tribe codified its proposed industrial hemp plan.
Id. ¶ 47; see also Docket 1-1. On
March 13, the Tribe participated in a listening session.
Docket 1 ¶ 49. A week later, on March 19, the Tribe met
with USDA to discuss the submitted plan. Id. ¶
50. On April 24, Secretary Perdue responded to the
Tribe's submitted plan, noting that USDA would approve or
deny the plan within 60 days after regulations were issued by
the agency. Docket 1-2. The letter reiterated that USDA's
goal is to “issue regulations in the fall of
2019.” Id. On May 2, the Tribe participated in
a USDA hemp listening session. Docket 24 ¶ 14. On May 6,
the Tribe submitted a letter to USDA requesting a waiver of
regulatory requirements so that the Tribe could plant in the
2019 season. Docket 1-1 at 57. A meeting between the Tribe
and USDA was held on May 13 to discuss the waiver. Docket 1
¶ 51. On May 24, the Tribe filed its complaint and
motion for temporary restraining order or preliminary
injunction before this court. Dockets 1, 4. A motion hearing
was held June 5, 2019. Docket 25.
preliminary injunction is an extraordinary remedy and the
burden of establishing the propriety of an injunction is on
the movant.” Roudachevski v. All-American Care
Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citing
Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.
2003)). To determine whether preliminary relief such as a
preliminary injunction or a temporary restraining order is
appropriate, the court considers the following factors:
“(1) the threat of irreparable harm to the movant; (2)
the state of the balance between this harm and the injury
that granting the injunction will inflict on [the nonmovant];
(3) the probability that [the] movant will succeed on the
merits; and (4) the public interest.” Mgmt.
Registry, Inc. v. A.W. Cos., Inc., 920 F.3d 1181, 1183
(8th Cir. 2019) (alterations in original) (citing
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109,
113 (8th Cir. 1981)). The Dataphase test for
preliminary injunctive relief is a flexible analysis.
Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc.,
182 F.3d 598, 601 (8th Cir. 1999). Thus, when weighing these
factors, “no single factor is in itself
dispositive.” Calvin Klein Cosmetics v. Parfums de
Coeur, Ltd., 824 F.2d 665, 667 (8th Cir. 1987).
“[A]ll of the factors must be considered to
determine” whether the balance weighs toward granting
the injunction. Id.
addition, a “court should flexibly weigh the case's
particular circumstances to determine whether the balance of
equities so favors the movant that justice requires”
court intervention. Hubbard, 182 F.3d at 601. The
“burden on a movant to demonstrate that a preliminary
injunction is warranted is heavier when, as here, granting
the preliminary injunction will in effect give the movant
substantially the relief it would obtain after a trial on the
merits.” Calvin Klein Cosmetics, 815 F.2d at
503; see also Dakota Indus., Inc. v. Dakota Sportswear,
Inc., 988 F.2d 61, 64 (8th Cir. 1993) (citation
omitted). When a plaintiff “is asking the Court to
order affirmative change . . . to obtain a mandatory
injunction requiring such action, the Plaintiff bears a heavy
burden.” Wigg v. Sioux Falls Sch. Dist. 49-5,
259 F.Supp.2d 967, 971 (D.S.D. 2003) (citing Sanborn Mfg.
Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997
F.2d 484, 486 (8th Cir. 1993)). “It is generally
inappropriate for a federal court at the
preliminary-injunction stage to give a final judgment on the
merits.” Univ. of Texas v. Camenisch, 451 U.S.
390, 395 (1981). Disfavored injunctions do not merely
preserve the parties' positions pending litigation, but
instead mandate action instead of prohibiting it, alter the
status quo, or grant all the relief that the movant would win
at trial. See Awad v. Ziriax, 670 F.3d 1111, 1125
(10th Cir. 2012); see also Schrier v. Univ. of
Colo., 427 F.3d 1253, 1258-59 (10th Cir. 2005).
The Tribe Requests Relief on the Merits at this Preliminary
Tribe's complaint, the Tribe “seeks a writ of
mandamus directing the Secretary to approve the Tribe's
plan as meeting the mandatory criteria set by statute and
that this approval be issued immediately.” Docket 1
Tribe's motion for temporary restraining order and
preliminary injunction, the Tribe requests “a
declaration that the Tribe's hemp production . . . may
lawfully proceed . . .” and an injunction
“enjoining USDA from any action that interferes with
such production, while the case is pending.” Docket 4
at 1. The All Writs Act provides that, “[t]he Supreme
Court and all courts established by Act of Congress may issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651. A form of jurisdiction is
also available under 28 U.S.C. § 1361 that provides
district courts with original jurisdiction “of any
action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” To qualify for
mandamus, a plaintiff must satisfy three requirements:
“(1) a clear and indisputable right to relief, (2) that
the government agency or official is violating a clear duty
to act, and (3) that no adequate alternative remedy
exists.” 8 Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 8312 (2d ed.
2019). Finally, the Administrative Procedure Act, codified at
5 U.S.C. § 706(1), authorizes a district court to
“compel agency action unlawfully withheld or
unreasonably delayed.” The Eighth Circuit has found
that relief under § 706(1) is similar to a request for a
writ of mandamus. See Org. for Competitive Markets v.
U.S. Dep't of Agric., 912 F.3d 455, 462 (8th Cir.
2018) (citing Norton v. Southern Utah Wilderness
Alliance, 542 U.S. 55, 63 (2004)). The Supreme Court in
Norton concluded that “a claim under §
706(1) can proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action that
it is required to take.” 542 U.S. at 64
(emphasis in original). Relief under the APA, like a writ of
mandamus, is “an extraordinary remedy reserved for
extraordinary situations.” Org. for Competitive
Markets, 912 F.3d at 462 (citation omitted).
relief requested by the Tribe is not preliminary injunctive
relief designed to preserve the status quo. Rather, the
requested relief is relief that would alter the status quo
and grant the Tribe relief on the merits of its complaint.
For the court to enjoin “the USDA from any action that
interferes with such production, while the case is pending,
” the court would have to issue a writ that would
compel the USDA to approve or disapprove the Tribe's
submitted plan, or the court would have to declare that the
USDA is improperly withholding the Tribe's 297B plan
pending the promulgation of regulations. Both of these
actions would alter the current status quo, which is that the
Tribe has not previously grown hemp. This is unlike a case
where a plaintiff requests a preliminary injunction to
prevent the closure of existing educational offices pending
resolution of a complaint that sought a writ of mandamus and
request for declaratory relief. See Yankton Sioux Tribe
v. Kempthorne, 442 F.Supp.2d 774, 781 (D.S.D. 2016).
Both a declaration and writ of mandamus are forms of relief
that may be obtained after a full trial on the merits but not
at the preliminary relief stage.
Tribe also advanced the argument at the motion hearing that
it is able to grow hemp under 7 U.S.C. § 1639p(f) and
the “other Federal laws (including regulations)”
language. Docket 25. The Tribe argued that under a myriad of
current federal laws, such as the Clean Water Act and the
Native American Graves Protection and Repatriation Act, the
Tribe can produce hemp. Id. But, even if this court
were to issue a preliminary injunction requiring the USDA to
act and immediately review the Tribe's plan, the Tribe
would still need the court to declare that the Tribe can
produce hemp under these other Federal laws, which is
declaratory relief that could be obtained after a trial on
the merits. See Dakota Indus., Inc., 944 F.2d at
440. Thus, because the requested relief would alter the
status quo ...