[Federal Register Volume 68, Number 68 (Wednesday, April 9, 2003)]
[Notices]
[Pages 17403-17405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8590]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 01-1]


The Church of the Living Tree; Denial of Application

    On November 4, 1999, and pursuant to 21 U.S.C. 823(a), the Deputy 
Assistant Administrator, Office of Diversion Control, Drug Enforcement 
Administration (DEA), issued an Order to Show Cause to the Church of 
the Living Tree (Respondent) of Leggett, California, proposing to deny 
its application for DEA Certificate of Registration as a manufacturer 
of marijuana, a Schedule I controlled substance. The Order to Show 
Cause alleged that the pending application should be denied because the 
Respondent's proposed manufacture and distribution of marijuana for 
human consumption was a purpose not in conformity with the provisions 
of the Controlled Substances Act, under 21 U.S.C., section 2 812(b)(1), 
822(b), 823(f)(4), and 841(a)(1).
    By letter dated November 26, 1999, the Respondent, through its 
trustee John Stahl (Mr. Stahl), timely filed a request for a hearing on 
the issues raised by the Order to Show Cause, stating, in part, that 
Respondent sought ``* * * to cultivate cannabis sativa for purposes 
which are allowable under California Law, and to process the remaining 
stalk into pulp for our paper mill.'' Through inadvertence, this 
request was not docketed for a possible hearing. As a result, the then-
Deputy Administrator of the DEA issued a final order finding that 
Respondent had not responded to the Order to Show Cause and denying

[[Page 17404]]

Respondent's application. 65 FR 50,567 (August 3, 2000). However, by 
error, and the agency subsequently rescinded the prior final order by 
order dated November 21, 2000. 65 FR 75958 (2000). The matter was then 
docketed before Administrative Law Judge Mary Ellen Bittner (Judge 
Bittner).
    On October 23, 2000, the Government filed a Motion for Summary 
Disposition, reiterating the allegations contained in the Order to Show 
Cause and further alleging, in part, that the manufacture of marijuana 
for human consumption is a purpose not in conformity with the 
Controlled Substance Act. The Government further argued that DEA 
rejected a previous petition to reschedule marijuana when it found that 
the drug has no currently accepted medical use. Marijuana Scheduling 
Petition; Denial of Petition; Remand, 59 FR 10,499, 10,507 (1992). The 
Government added that because the Respondent's previous DEA application 
for registration as a marijuana manufacturer was denied, the Respondent 
is now precluded from re-litigating the matter in its renewed effort to 
obtain a similar registration under the doctrine of res judicata. 
Robert A. Leslie, M.D., 64 FR 25,908 (1999); Robert M. Golden, M.D., 63 
FR 38,669 (1998).
    On November 1, and December 1, 2000, the Respondent filed its 
Response to Motion for Summary Disposition and Further Response to 
Motion for Summary Disposition respectively. In its submissions, the 
Respondent argued in essence that it ``* * * intended to cultivate 
medical marijuana as a cooperative farm of * * * patients qualifying 
under the terms of the Compassionate Use Act of 1996 (the Compassionate 
Use Act).'' As noted in a previous DEA final order, effective November 
6, 1996, voters in California adopted the Compassionate Use Act, which 
provides that persons may grow or posses marijuana ``upon the written 
or oral recommendation or approval of a physician.'' Cal. Health & 
Safety Code section 11362.5 Marion ``Molly'' Fry, M.D., 67 FR 78015, 
78017 (2002). The Respondent further argued in relevant part that 
California's marijuana law should be given deference by the Federal 
Government, and the Government's motion for summary disposition 
rejected, since there remained a fundamental question for resolution by 
the instant proceedings: whether Respondent's application should denied 
despite its engaging in activities that are now sanctioned under 
California state law (i.e., cultivation of marijuana for human 
consumption).
    On April 17, 2001, Judge Bittner issued her Opinion and Recommended 
Decision, granting the Government's Motion for Summary Disposition and 
recommending that Respondent's application for DEA registration be 
denied. Neither party filed exceptions to Judge Bittner's recommended 
ruling, and on June 12, 2001, the record was transmitted to the Deputy 
Administrator for his final decision. The Deputy Administrator has 
considered the record in its entirety, and pursuant to 21 CFR 1316.67, 
hereby issues his final order based upon findings of fact and 
conclusions of law as hereinafter set forth. The Deputy Administrator 
adopts the Opinion and Recommended Decision of the Administrative Law 
Judge, and finds as follows:
    On January 21, 1997, the Respondent submitted a prior application 
to DEA as a manufacturer of marijuana for human consumption. The 
Respondent proposed to rent space on its property to individuals 
qualifying under California State law as medical marijuana patients, 
who would then cultivate marijuana for personal consumption, leaving 
the mature stalks for Respondent to process into paper. On April 17, 
1998, DEA issued an Order to Show Cause seeking to deny the application 
on grounds that the Respondent was not authorized by the State of 
California to cultivate marijuana. The Respondent filed a timely 
request for hearing, and the matter was docketed before Judge Bittner 
as Church of the Living Tree, DEA Docket No. 98-26 (Church of the 
Living Tree 1). On May 21, 1998, the Government filed a motion summary 
disposition, alleging inter alia, that California law did not permit 
cultivation or harvesting of marijuana, and as a result of Respondent's 
lack of state authorization to manufacture marijuana for non-human 
consumption, DEA could not grant its application for registration as a 
matter of law.
    In response to the Government's motion, and with arguments similar 
in scope to its present request for registration, the Respondent 
asserted in relevant part that the purpose of its application as a bulk 
manufacturer of medical marijuana was decidedly ``for Human 
Consumption'' and in compliance with California law. On July 31, 1998, 
Judge Bittner issued a recommended decision, in which she granted the 
Government's motion for summary disposition and recommended that the 
Respondent's application be denied.
    In his final order published as Church of the Living Tree, 63 FR 
69,674 (1998), the then-Deputy Administrator found that from a reading 
of the Respondent's marijuana manufacturing proposal, ``* * * it is 
clear that Respondent will be renting space on its property to others, 
but [Respondent] will not be the one manufacturing marijuana. Therefore 
* * * since Respondent will not be manufacturing marijuana nor is it 
proposing to manufacture marijuana, its application to be a 
manufacturer of marijuana must be denied.'' 21 U.S.C. 822(a) and 
823(a). The then-Deputy Administrator added, ``* * * if Respondent's 
application is for registration to manufacture marijuana for non-human 
consumption, then it would have to be denied because California does 
not allow the cultivation of marijuana for non-human consumption.''
    As noted above, on June 18, 1998, the Respondent submitted its most 
recent application for DEA registration as a manufacturer of marijuana 
in the category of bulk synthesizer-extractor. In support of the 
application, the Respondent asserted that its intentions are to 
cultivate medical marijuana as a cooperative farm of California 
patients qualifying under the terms of the Compassionate Use Act of 
1996. The Respondent further contends that Art.I, sec. 8 and the Tenth 
Amendment to the United States Constitution provides the right to 
States to regulate their internal affairs. Therefore Respondent argues, 
since the proposes uses for its registration complies with California 
law, Respondent's pending application should be granted.
    In the April 17, 2001, Opinion and Recommended Decision, Judge 
Bittner found that while Respondent seeks registration as a bulk 
synthesizer-extractor of marijuana, and although the Respondent is 
apparently willing to modify its application to the ``non-human 
consumption'' category, the Respondent's application cannot be granted 
under either category. The Deputy Administrator concurs with this 
finding. DEA concluded in Church of the Living Tree I that if 
Respondent rents out space to medical marijuana patients to cultivate 
marijuana, Respondent will be the entity doing the cultivation and 
therefore cannot be registered as a bulk synthesizer-extractor of 
marijuana. With respect to its instant application, the Respondent has 
not indicated that it seeks registration for purposes of growing 
marijuana for non-human consumption. In any event, there remains a lack 
of evidence before the Deputy Administrator that California law 
provides for the cultivation of marijuana for non-human consumption.
    The Respondent has once again submitted an application for 
registration

[[Page 17405]]

as a manufacture of marijuana for human consumption. Such use of a DEA 
registration is not in conformity with provisions of the Controlled 
Substances Act. As noted above marijuana is listed in Schedule I of the 
Controlled Substances Act (CSA). 21 U.S.C. 812(c); 21 CFR 1303.11. The 
CSA defines Schedule I controlled substances as those drugs or other 
substances that have ``a high potential for abuse,'' ``no current 
accepted medical use in treatment in the United States,'' and ``a lack 
of accepted safety for use * * * under medical supervision.'' Also, 
every drug listed in Schedule I of the CSA lacks approval for marketing 
under the Federal Food Drug and Cosmetic Act (FDCA). Therefore, the 
Food and Drug Administration (FDA) has not approved marijuana for 
marketing as a drug.
    The deleterious effects of marijuana use have been outlined 
extensively in previous DEA final orders and will not be repeated at 
length here. Marion ``Molly'' Fry, M.D. at 79015. See also, 66 FR 20038 
(2001) 57 FR 10499 (1992). However, it bears mentioning again that the 
numerous significant short-term side effects and long term risks linked 
to smoking marijuana, include damage to brain cells; lung problems such 
as bronchitis and emphysema; a weakening of the body's antibacterial 
defenses in the lungs; the lowering of blood pressure; trouble with 
thinking and concentration; fatigue; sleepiness and the impairment of 
motors skills. Id.
    Marijuana was placed in Schedule I for the same fundamental reason 
that it has never been approved for sale by the FDA; there have never 
been any sound scientific studies which demonstrate that marijuana can 
be used safely and effectively as medicine. See 66 FR 20038 (April 18, 
2001) (DEA final order denying petition to initiate proceedings to 
reschedule marijuana). The Supreme Court recently explained the legal 
significance of marijuana's placement in Schedule I of the CSA:

    Whereas some other drugs (those in Schedules II through V) can 
be dispensed and prescribed for medical use, see 21 U.S.C. 829, the 
same is not true for marijuana. Indeed, the purposes of the 
Controlled Substances Act, marijuana has ``no currently accepted 
medical use'' at all.

United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 482, 
491 (2001).
    Federal law prohibits human consumption of marijuana outside of 
FDS-approved, DEA registered research. Id. at 490 (``For marijuana (and 
other drugs that have been classified as `schedule I' controlled 
substances), there is but one express exception, and it is available 
only for Government approved research projects, section 823(f).''). Id. 
at 495 n.7.
    In light of the Respondent's pending DEA application which by law 
cannot be granted, the Deputy Administrator concurs with Judge Bittner 
that there are no material disputed facts in this matter. Accordingly, 
the Government's motion for summary disposition was properly 
entertained and granted. It is well settled that when no question of 
material fact is involved, or when the material facts are agreed upon, 
a plenary, adversary administrative proceeding involving evidence and 
cross-examination of witnesses is not obligatory. The rationale is that 
Congress does not intend administrative agencies to perform meaningless 
tasks. See Gilbert Ross, M.D., 61 FR 8664 (1996); Philip E. Kirk, M.D., 
48 FR 32,887 (1983), aff'd sub nom Kirk v. Mullen, 749 F.2d 297 (6th 
Cir. 1984); NLRB v. International Association of Bridge, Structural and 
Ornamental Ironworkers, AFL-CIO, 549 F.2d 634 (9th Cir. 1977). For the 
above-stated reasons, the application of Respondent must be denied.
    Accordingly, the Deputy Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application for a DEA Certificate of Registration submitted by the 
Church of the Living Tree, be, and it hereby is, denied. This order is 
effective April 9, 2003.

    Dated: March 26, 2003.
John B. Brown, III,
Deputy Administrator.
[FR Doc. 03-8590 Filed 4-8-03; 8:45 am]
BILLING CODE 4410-09-M