Flandreau Santee Sioux Tribe v. United States Department of Agriculture

          ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         BACKGROUND

         In 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.^[1] 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. § 1639r(b).

         On 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.

         LEGAL STANDARD

         “A 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.

         In 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).

         DISCUSSION

         I. The Tribe Requests Relief on the Merits at this Preliminary Stage

         In the 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 ¶ 18.

         In the 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).

         The 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.

         The 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 ...