ST. PAUL — The Minnesota Department of Agriculture has asked a judge to dismiss a federal lawsuit brought by a Lanesboro hemp farmer arguing that the department’s actions were in agreement with a memorandum of understanding signed by the farmer.

Luis Miguel Hummel and his business, 5th Sun Gardens LLC, filed a civil suit in U.S. District Court of Minnesota on May 30 against the Minnesota Department of Agriculture, its commissioner and three named officials as well as two unnamed individuals. The complaint was originally sealed but has since been unsealed.

In the civil suit, Hummel argues that his right to procedural due process was violated when the department failed to provide him with “notice and opportunity for a hearing” and that the department violated his “constitutional rights to substantive due process when they revoked the license and directed destruction of the crop.”

The suit asks a judge to grant “injunctive relief precluding the (Department of Agriculture) from further impugning (Hummel’s) constitutional rights” and award Hummel a momentary judgement.

The Department of Agriculture filed a motion to dismiss on June 21. A hearing on the motion is scheduled for Sept. 16 in U.S. District court in Minnesota.

Arguing on behalf of the state, Assistant Attorney General Colin P. O’Donovan filed a motion to dismiss, arguing that Hummel and his business voluntarily and knowingly entered into the pilot program through execution of the MOU, which clearly explained three things: The Minnesota Department of Agriculture has "ultimate discretion" as to who may participate in the pilot program; the department has the ability to revoke a participant’s license if he or she violates the MOU; and the memorandum included language that released the state and its employees for any liability claims stemming from participation in the pilot program, according to the motion.

Pending criminal charges

A criminal complaint was filed in Fillmore County District Court on June 12 charging Hummel with felony fifth-degree drug sales, felony possession of a controlled substance and gross misdemeanor fifth-degree drug possession. Hummel was not arrested, but given a summons to appear in court on the charges on July 8.

A traffic stop in Fillmore County led to the discovery of CBD hemp and other CBD products from Hummel’s business 5th Sun Gardens that were allegedly found to be well over the state’s 0.3% THC level to be considered legal hemp, according to the criminal complaint. Testing of the products found the THC level above 3%, according to the complaint.

Growing hemp in Minnesota

The Minnesota Department of Agriculture is in charge of regulating hemp farmers, after the 2014 Farm Bill contained a provision that allowed state departments of agriculture to administer pilot programs to study the growth, cultivation and marketing of industrial hemp.

According to MDA’s website, individuals and businesses in Minnesota must get licensed in the MDA Industrial Hemp Pilot Program to grow and process hemp. To be considered, hemp growers and processors must have a federal and state background check performed, send a set of their fingerprints and provide a detailed map of the fields they plan to grow hemp.

Industrial hemp is defined as ‘the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis,’” according to the state’s motion to dismiss. “If a hemp plant or hemp product contains more than .3% THC, the product does not fall within the definition of ‘industrial hemp’ and is considered a controlled substance under Minnesota law.”

To examine how much THC is in hemp that is grown in the state, an MDA inspector samples each field grown by pilot participants. The fields are sampled within 30 days of harvest, and are sent to accredited labs for analysis.

Six participants grew industrial hemp under MDA’s pilot program in 2016, harvesting approximately 40 acres. In 2017, there were 38 registered pilot participants, who grew 1,205 acres. In 2018, there were 51 pilot participants, who grew 710 acres.

According to Whitney Place, MDA assistant commissioner, Hummel is the second hemp farmer in the state to have their license suspended.

Noah Fish contributed to this report.