AK Industrial Hemp Association, Inc. et al v. Alaska Department of Natural Resources et al

Filing 20

ORDER denied without prejudice to its renewal 4 Motion for TRO. Signed by Judge Sharon L. Gleason on 12/27/23. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

AK INDUSTRIAL HEMP ASSOCIATION,
INC., et al.,
Plaintiffs,
v.
ALASKA DEPARTMENT OF NATURAL
RESOURCES, et al.,

Case No. 3:23-cv-00253-SLG

Defendants.
ORDER RE MOTION FOR TEMPORARY RESTRAINING ORDER OR
ALTERNATIVE MOTION FOR PRELIMINARY INJUNCTION
Before the Court at Docket 4 is Plaintiffs’ Motion for Temporary Restraining
Order or Alternative Motion for Preliminary Injunction.1 Defendants responded in
opposition at Docket 11;2 Plaintiffs did not file a reply. Oral argument was not
requested and was not necessary to the Court’s determination.
BACKGROUND
This lawsuit is about the State of Alaska’s (“State”) regulation of industrial

The original Plaintiffs are AK Industrial Hemp Association, Inc.; Primo Farms North LLC; GD
Sales LLC; McDonough Corp Inc.; and Alaska Edibles LLC. See Docket 1. Plaintiffs also filed a
memorandum in support of their Motion for Temporary Restraining Order or Alternative Motion
for Preliminary Injunction at Docket 7. Plaintiff subsequently filed an Amended Complaint that
added more Plaintiffs at docket 14.
1

Defendants are the Alaska Department of Natural Resources; John C. Boyle, III, in his official
capacity as Commissioner of the Alaska Department of Natural Resources; the Alaska Division
of Agriculture; Bryan Scoresby, in his official capacity as the Director of the Alaska Division of
Agriculture; the State of Alaska; and Nancy Dahlstrom, in her official capacity as the Alaska
Lieutenant Governor.
2

hemp products intended for human or animal consumption. In 2018, the federal
government authorized states to take “primary regulatory authority over the
production of hemp in the State” if the state submitted a hemp regulation plan to
the U.S. Department of Agriculture (“USDA”) and met certain other requirements,
pursuant to the Agriculture Improvement Act of 2018 (“2018 Farm Bill”).3 The 2018
Farm Bill defined “hemp” as “the plant Cannabis sativa L. and any part of that plant,
including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,
acids, salts, and salts of isomers, whether growing or not, with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight
basis.”4
While the 2018 Farm Bill authorized states to take control of hemp
production if they met certain requirements, it also specifically provided that the
legislation would not “preempt[] or limit[] any law of a State” that “(i) regulates the
production of hemp; and (ii) is more stringent than this subtitle.”5 However, the
2018 Farm Bill did preempt state laws regarding the interstate transportation of
hemp products, providing that “[n]othing in this title or an amendment made by this
title prohibits the interstate commerce of hemp . . . or hemp products” as defined

Pub. L. No. 115-334, § 10113, 132 Stat. 4490, 4909-12 (2018) (codified at 7 U.S.C. § 1639p).
For ease of reference, the Court cites to the 2018 Farm Bill by using its codified provisions in
the United States Code.
3

4

7 U.S.C. § 1639o(1).

5

See Pub. L. No. 115-334, § 10113, 132 Stat. 4910; 7 U.S.C. § 1639p(a)(3)(A).

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by the federal statute, and that “[n]o State . . . shall prohibit the transportation or
shipment of hemp or hemp products . . . through the State.”6 The State of Alaska,
which had started an industrial hemp pilot program in 2018,7 subsequently updated
its definition of “industrial hemp” in 2021 to be consistent with the definition of
“hemp” in the 2018 Farm Bill.8 The Alaska Department of Natural Resources
(“DNR”), Division of Agriculture, also submitted a plan to the USDA for State
regulation of industrial hemp production pursuant to the 2018 Farm Bill; the plan
was approved and took effect in January 2022.9 The plan did not include any age
restrictions “for individuals to purchase endorsed products from retailers that are
registered under the State Hemp Plan.”10 The State’s industrial hemp regulations
are set forth at Title 11 of the Alaska Administrative Code (“AAC”), Chapter 40.
Effective November 3, 2023, the State amended its industrial hemp
regulations to remove the authority of the Division of Agriculture to endorse any
hemp products containing any delta-9-tetrahydrocannabinol (“delta-9-THC”) or

6

Pub. L. No. 115-334, § 10114, 132 Stat. at 4914.

7

S.B. 6, 30th Leg., 2d Sess. (Alaska 2018).

8

S.B. 27, 32d Leg., 1st Sess. (Alaska 2021).

See S.B. 27, 32d Leg., 1st Sess. (Alaska 2021); Alaska Stat. § 03.05.076(i); Alaska Dep’t of
Nat. Res., Div. of Agric., USDA Industrial Hemp Program Alaska State Plan (2021) [hereinafter
State Hemp Plan], available at
https://www.ams.usda.gov/sites/default/files/media/AlaskaStateIndustrialHempPlan.pdf.
9

Docket 11-3 at 4 & n.3 (also noting that “[b]ecause age-restrictions to purchase endorsed
products were not included in the legislation authorizing the State Hemp Plan, the Department
of Natural Resources cannot implement the restriction through regulations”); see generally State
Hemp Plan, supra note 9.
10

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“non-naturally occurring cannabinoid,” pursuant to a newly-enacted subsection, 11
AAC 40.400(d).11 11 AAC 40.400 also requires a hemp distributor to obtain an
endorsement in order to offer to consumers in Alaska, “with or without
compensation,” hemp products intended for human or animal consumption.12
Thus, the amendment effectively prohibits the in-state sale of hemp products
intended for human or animal consumption that contain any delta-9-THC or other
non-naturally occurring cannabinoid.13 In addition, 11 AAC 40.400 was amended
to remove the endorsement requirement for the transportation of hemp products
intended for human or animal consumption in and through Alaska, regardless of
delta-9-THC content.14
Plaintiffs, including various companies that deal in hemp products, challenge
the State’s recently amended regulations.15

They filed their complaint on

November 2, 2023, bringing five causes of action: declaratory relief for violations

“Hemp products” and “industrial hemp products” are used interchangeably in this order. The
amended industrial hemp regulations can be found in the order adopting changes to regulations
at Docket 1-2. The same adoption order containing the amended regulations can also be found
at https://aws.state.ak.us/OnlinePublicNotices/Notices/Attachment.aspx?id=144035.
11

12

11 AAC 40.400(a).

13

See 11 AAC 40.400(a), (d).

See Docket 1-7 at 2 (notice of proposed changes to Alaska industrial hemp regulations);
Docket 11-1 at 7 (“The regulations removed the requirement that a person obtain an
endorsement to transport within the state a processed industrial hemp product intended for
human or animal consumption.”); Docket 1-2 at 15 (deleting language in brackets, “transported
in the state or”—it appears that brackets indicate deletion within the adoption order for the
amended regulations).
14

15

Docket 1 at ¶ 16.

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of the 2018 Farm Bill,16 declaratory relief for violation of the dormant Commerce
Clause,17 regulatory taking,18 a claim that the regulations are void for vagueness,19
and injunctive relief.20

On the same day, they filed the instant motion for a

temporary restraining order or, in the alternative, preliminary injunction.21 Plaintiffs
request that the Court enjoin the State from enforcing the amended regulations
pending resolution of this lawsuit.22
JURISDICTION
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a
civil action with certain claims arising under federal law, 28 U.S.C. §§ 1331 and
1343, and 42 U.S.C. § 1983. Whether a federal law preempts a state law is a
question of federal law.23

16

Docket 1 at ¶¶ 69-90.

17

Docket 1 at ¶¶ 91-106.

18

Docket 1 at ¶¶ 107-119.

19

Docket 1 at ¶¶ 120-139.

Docket 1 at ¶¶ 140-148. Plaintiffs have since filed an amended complaint after this motion
was filed. See Docket 14 (Am. Complaint); Docket 19 (order accepting amended complaint).
20

Docket 4. Plaintiffs also filed a motion for expedited consideration of the motion for a
temporary restraining order/preliminary injunction, which the Court denied. See Docket 5;
Docket 8.
21

22

Docket 4 at 1.

23

See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 214 (1985).

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LEGAL STANDARD
The standard for obtaining a temporary restraining order is “substantially
identical” to that for a preliminary injunction.24 In Winter v. Natural Resources
Defense Council, Inc., the United States Supreme Court held that plaintiffs seeking
preliminary injunctive relief must establish that (1) they are likely to succeed on the
merits; (2) they are likely to suffer irreparable harm in the absence of preliminary
relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction
is in the public interest.25 The Supreme Court in Winter characterized “injunctive
relief as an extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.”26
Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”27 Under that approach, if a plaintiff shows “that there are ‘serious
questions going to the merits’—a lesser showing than likelihood of success on the
merits—then a preliminary injunction may still issue if the ‘balance of hardships

Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). Since
the standard for obtaining a temporary restraining order is “substantially identical” to that for a
preliminary injunction, the Court considers them together in this order.

24

25

555 U.S. 7, 20 (2008).

26

Id. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).

27

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011).

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tips sharply in the plaintiff’s favor.’”28 “Serious questions are ‘substantial, difficult
and doubtful, as to make them a fair ground for litigation and thus for more
deliberative investigation.’”29 They “need not promise a certainty of success, nor
even present a probability of success, but must involve a ‘fair chance on the
merits.’”30 All four Winter elements must still be satisfied under this approach,31
but the last two elements—the balance of hardships and consideration of the public
interest—merge where, as here, a governmental entity is a party to the action.32
DISCUSSION
The Court first considers whether Plaintiffs have demonstrated that they are
likely to succeed on the merits of each of their claims. Plaintiffs assert that the
State’s amendments to its industrial hemp regulations at 11 AAC 40.010-40.910
(1) expressly and publicly violate the dormant commerce clause
burdening interstate commerce while benefitting in-state interests,
namely the Alaska marijuana industry; (2) redefine[] Federal law
definition of “hemp” in violation of the Supremacy clause; (3) create a
regulatory taking[;] and (4) [are] void for vagueness [for] not having
provided enough guidance to citizens and registered hemp growers

Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
28

Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir. 1991) (quoting Republic of the Philippines
v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)); see also Fyock v. City of Sunnyvale, 25 F.
Supp. 3d 1267, 1273 (N.D. Cal. 2014) (“‘Serious questions’ refers to questions ‘which cannot be
resolved one way or the other at the hearing on the injunction and as to which the court
perceives a need to preserve the status quo . . . .’” (quoting Gilder, 936 F.2d at 422)).
29

30

Gilder, 936 F.2d at 422 (quoting Marcos, 862 F.2d at 1362).

All. for the Wild Rockies, 632 F.3d at 1135 (“Of course, plaintiffs must also satisfy the other
Winter factors.”).
31

32

Nken v. Holder, 556 U.S. 418, 435 (2009).

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whom are part of the State’s Industrial Hemp pilot program.33
I.

Dormant Commerce Clause
The dormant Commerce Clause refers to the prohibition, implicit in the

Commerce Clause, against States “enact[ing] laws imposing substantial burdens
on [interstate or foreign] commerce.”34

“Modern dormant Commerce Clause

jurisprudence primarily ‘is driven by concern about economic protectionism—that
is, regulatory measures designed to benefit in-state economic interests by
burdening out-of-state competitors.’”35 However, States still “retain broad power
to legislate protection for their citizens in matters of local concern such as public
health,” and “not every exercise of local power is invalid merely because it affects
in some way the flow of commerce between the States.”36 The Supreme Court in
Pike v. Bruce Church, Inc., set forth the following dormant Commerce Clause rule:
Where the statute regulates even-handedly to effectuate a legitimate
local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits.
If a legitimate local purpose is found, then the question becomes one
of degree. And the extent of the burden that will be tolerated will of
course depend on the nature of the local interest involved, and on

33

Docket 7 at 1-2.

Nat’l Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (first
quoting S.-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984); and then citing Or.
Waste Sys., Inc. v. Dep’t of Env’t Quality of State of Or., 511 U.S. 93, 98 (1994)).

34

35

Id. at 1148 (quoting Dep’t of Revenue v. Davis, 553 U.S. 328, 337-38 (2008)).

Id. (quoting Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 371 (1976)) (other citations
omitted).

36

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whether it could be promoted as well with a lesser impact on interstate
activities.37
Here, the amended industrial hemp regulations likely “regulate[] evenhandedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental.”38 While Plaintiffs assert that the State’s hemp
regulations violate the dormant Commerce Clause, it appears that the regulations
at issue here affect both in-state and out-of-state competitors equally, as the
regulations provide that all hemp products, wherever produced, containing any
delta-9-THC and intended for human or animal consumption cannot be sold to a
consumer in Alaska.39 This rule contains no restrictions on to whom it applies, so
it does not appear to “discriminate against interstate commerce.”40

Further,

Plaintiffs have not demonstrated how the regulations’ effects on interstate
commerce are more than incidental. And although Plaintiffs express concern that
the Alaska DNR Commissioner stated that the regulations would provide
“protections for the regulated cannabis industry in our state,”41 the Commissioner
explained that the regulations target a public health and safety concern, because
“[t]he Industrial Hemp Program was never intended to allow intoxicating products,

37

397 U.S. 137, 142 (1970) (citations omitted).

38

See id. (citation omitted).

39

11 AAC 40.400(a), (d).

See Nat’l Ass’n of Optometrists, 682 F.3d at 1148 (quoting CTS Corp. v. Dynamics Corp. of
Am., 481 U.S. 69, 87 (1987)).
40

41

See Docket 7 at 6 (quoting Docket 1-4 at 1).

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which are rightfully regulated for the recreational market in Alaska by the Alcohol
& Marijuana Control Office.”42 The State thus contends that “these regulations are
aimed at targeting a bona fide public health concern: the easy availability of any
product that contains delta-9-THC or a non-naturally occurring cannabinoid to a
person under 21 years-of-age.”43
The State has identified a legitimate local purpose for the new regulations.
As such, the question then becomes whether the extent of any burden on interstate
commerce is “clearly excessive in relation to the putative local benefits.”44 At this
very preliminary stage of litigation and on the record that was before the Court on
this motion, Plaintiffs neither discussed nor produced sufficient evidence to show
that any burden imposed on interstate commerce was excessive when weighed
against the public health benefit of the newly enacted regulations.

Accordingly,

the Court finds that Plaintiffs have not shown a likelihood of success on the merits
of their dormant Commerce Clause claim.
II.

Supremacy Clause
The Supremacy Clause provides that “[t]his Constitution, and the Laws of

the United States which shall be made in Pursuance thereof . . . shall be the

42

Docket 1-4 at 1.

Docket 11-1 at 11. See also Docket 11-2 at 2 (letter to the Governor of Alaska noting that
some hemp-derived products contain higher quantities of delta-9-THC than approved marijuana
products, and that such hemp products can be readily obtained by minors).
43

44

Pike, 397 U.S. at 142.

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supreme Law of the Land . . . any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.”45 The preemption doctrine derives from the
Supremacy Clause, which makes a state law void if it conflicts with federal law or
“stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress.”46
Plaintiffs assert that the State’s amended industrial hemp regulations
impermissibly conflict with the federal definition of “hemp” by (1) declaring “all
hemp for human consumption a public nuisance,” and (2) defining cannabidiol
(“CBD”) as “not to include synthetics,” which Plaintiffs contend is in conflict with
Ninth Circuit case law “declar[ing] all CBDs derived from hemp are hemp.”47 On
this second point, the Court does not read the Ninth Circuit’s decision in AK Futures
LLC v. Boyd St. Distro, LLC, which Plaintiffs cite, to stand for that proposition.48
Plaintiffs’ first argument regarding the public nuisance issue is unclear to the Court.
But the Court notes that Plaintiffs have not alleged that the Alaska DNR, Division
of Agriculture, “has ever sought to declare any of their products as a public

45

U.S. Const. art. VI, cl. 2.

46

See Maryland v. Louisiana, 451 U.S. 725, 747 (1981) (citations omitted).

Docket 7 at 8 (citing AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682, 695 (9th Cir.
2022)); see also Docket 1-2 at 31-32 (showing amendments to hemp regulations concerning
public nuisances); Docket 1-2 at 34 (showing amendments to the definition of CBD under 11
AAC 40.910(9), where CBD is now defined to “not include synthetic cannabidiol”).

47

35 F.4th at 691 (holding in trademark infringement action that the 2018 Farm Bill’s definition of
hemp includes delta-8-THC products and, thus, such products are eligible for trademark
protection under federal law).
48

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nuisance subject to destruction.”49 Nor have Plaintiffs explained how Alaska’s
regulations regarding public nuisances and CBD conflict with federal law.
Plaintiffs further maintain that a “clear purpose of the federal 2018 Farm Bill
is to create an industrial hemp industry,” and that the “highest profit margin items”
for the hemp industry “are all hemp products for human consumption, oils,
gummies, [and] gels.”50 The State, however, notes that hemp has had a long
history “as an agricultural commodity.”51 The State also points out that the 2018
Farm Bill contains two provisions regarding preemption:52 It expressly provides that
“[n]o State . . . shall prohibit the transportation or shipment of hemp or hemp
products . . . through the State.”53

It further provides that “[n]othing in this

subsection preempts or limits any law of a State” that “(i) regulates the production
of hemp; and (ii) is more stringent than this subtitle.”54 Thus, state laws prohibiting
the interstate transportation of hemp as defined by the federal statute are expressly
preempted, but states may otherwise stringently regulate hemp production.
In sum, the Court concurs with the State’s analysis that the “amendments
to Alaska’s industrial hemp regulations are . . . not preempted by the 2018 Farm

49

See Docket 11-1 at 18.

50

Docket 7 at 9.

51

Docket 11-1 at 13.

52

Docket 11-1 at 13.

53

Pub. L. No. 115-334, § 10114, 132 Stat. at 4914.

54

Pub. L. No. 115-334, § 10113, 132 Stat. 4910; see also 7 U.S.C. § 1639p(a)(3)(A).

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[Bill].”55 The State’s industrial hemp regulations are now more stringent than the
federal regulation of hemp, which the 2018 Farm Bill expressly permits.56 In
addition, because the State removed the endorsement requirement for
transporting hemp (with any level of delta-9-THC) in Alaska, the state regulation
does not run afoul of federal law because it does not prohibit the interstate
transportation of hemp products.57

Plaintiffs, therefore, have not shown a

likelihood of success on the merits of this Supremacy Clause claim.
III.

Regulatory Taking
There are two types of claims under the Takings Clause: First, “[w]hen the

government carries out ‘a physical appropriation of property, a per se taking has
occurred.’”58 Second, if the government “‘has instead restricted a property owner’s
ability to use his own property,’ a court must evaluate the action under the threefactor test announced in Penn Central Transportation Co. v. City of New York . . .
to determine whether it constitutes a ‘regulatory taking.’”59 “Determining whether

55

See Docket 11-1 at 13.

56

See 7 U.S.C. § 1639p(a)(3)(A); Docket 11-1 at 14.

See Docket 1-7 at 2; Docket 11-1 at 7 (“The regulations removed the requirement that a
person obtain an endorsement to transport within the state a processed industrial hemp product
intended for human or animal consumption.”); Docket 1-2 at 15 (deleting language in brackets,
“transported in the state or”). See also Pub. L. No. 115-334, § 10114, 132 Stat. at 4914.
57

CDK Glob. LLC v. Brnovich, 16 F.4th 1266, 1281 (9th Cir. 2021) (quoting Cedar Point Nursery
v. Hassid, 141 S. Ct. 2063, 2072 (2021)); U.S. Const. amend. V (“. . . nor shall private property
be taken for public use, without just compensation.”). See also Chicago, Burlington & Quincy
R.R. Co. v. City of Chicago, 166 U.S. 226, 247 (1897) (applying the Takings Clause to States
through the Fourteenth Amendment).

58

59

CDK Glob., 16 F.4th at 1281 (first quoting Cedar Point Nursery, 141 S. Ct. at 2072; and then

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a regulatory taking has occurred entails an ‘ad hoc, factual inquir[y]’ into (1) ‘[t]he
economic impact of the regulation on the [property owner],’ (2) ‘the extent to which
the regulation has interfered with distinct investment-backed expectations,’ and (3)
‘the character of the governmental action.’”60
Plaintiffs contend that they “stand to lose all economically beneficial uses of
their property because there is a significant risk that the state deems all hemp
products as intended for human consumption.”61 They assert that they “will be
unable to sell or transfer hemp without breaking federal law.”62 They further
maintain that they have “approximately $2 million worth of hemp products,” and
that if the Alaska DNR destroys these products or removes their endorsements,
then “the DNR will have committed a taking.”63
First, Plaintiffs have not alleged that any physical appropriation of their hemp
products has occurred or is likely to imminently occur before this case is
determined on the merits. To the contrary, the State maintains that the amended
regulations “do not compel the surrender of the [products], and there is no physical
invasion or restraint upon them.”64

Second, Plaintiffs bring forth conclusory

citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978)).
60

Id. at 1282 (alterations in original) (quoting Penn Cent., 438 U.S. at 124).

61

Docket 7 at 11 (internal quotation marks omitted).

62

Docket 7 at 11.

63

Docket 7 at 11.

64

Docket 11-1 at 15 (quoting Andrus v. Allard, 444 U.S. 51, 65 (1979)).

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arguments and do not explain why, under the three-factor test in Penn Central, a
regulatory taking has occurred. While it is true that Plaintiffs can no longer sell
hemp products containing delta-9-THC intended for human or animal consumption
in Alaska, they do not detail why they cannot sell their products to consumers in
the many other states that currently permit the sale of such products. Thus, they
have not explained in sufficient detail what economic impact the amended
regulations makes on them.65 Neither have Plaintiffs explained “the extent to which
the regulation has interfered with distinct investment-backed expectations.”66 The
“character of the governmental action” here is that the in-state sale of hemp
products containing delta-9-THC intended for human or animal consumption is
prohibited.67 Based on the evidence, it appears that the governmental action is
more aptly characterized as “adjusting the benefits and burdens of economic life
to promote the common good” rather than “a physical invasion by [the]
government.”68

While the State contends that the “regulations are aimed at

targeting a bona fide public health concern: the easy availability of any product that
contains delta-9-THC or a non-naturally occurring cannabinoid to a person under
21 years-of-age,”69 Plaintiffs did not respond to the State’s characterization of this

65

See Penn Cent., 438 U.S. at 124 (citation omitted).

66

Id. (citation omitted).

67

Id.

68

See id. (citation omitted).

69

Docket 11-1 at 11.

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governmental action.

Thus, Plaintiffs have not shown that they are likely to

succeed on their claim that the State’s amended regulations constitute an
unconstitutional regulatory taking.
IV.

Vagueness
Lastly, Plaintiffs contend that the new regulations are unconstitutionally

vague.70 In evaluating whether a law is vague, courts consider whether the law
“give[s] the person of ordinary intelligence a reasonable opportunity to know what
is prohibited, so that he may act accordingly.”71 Further, the law “must provide
explicit standards for those who apply them” in order to prevent “arbitrary and
discriminatory enforcement.”72 However, these standards are not “mechanically
applied,” and the “degree of vagueness that the Constitution tolerates—as well as
the relative importance of fair notice and fair enforcement—depends in part on the
nature of the enactment.”73
Thus, economic regulation is subject to a less strict vagueness test
because its subject matter is often more narrow, and because
businesses, which face economic demands to plan behavior carefully,
can be expected to consult relevant legislation in advance of
action. Indeed, the regulated enterprise may have the ability to clarify
the meaning of the regulation by its own inquiry, or by resort to an
administrative process.74
70

Docket 7 at 12.

Vill. of Hoffman Ests. v. The Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 (1982) (citation
omitted).
71

72

Id. (citation omitted).

73

Id.

74

Id.

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Here, while Plaintiffs assert that the amended industrial hemp regulations
are unconstitutionally vague, they “do not identify any text or particular section that
is difficult to understand”; nor do they identify how any part of the amended
regulations is susceptible to alternate interpretations.75 Rather, they list generic
legal procedural questions for which they provide no answers.76

In addition,

Plaintiffs primarily consist of businesses,77 which “can be expected to consult
relevant legislation in advance of action.”78 Prior to the amended regulations taking
effect, the Alaska DNR issued a “Notice of Proposed Changes” to those
regulations and sought public comment.79 Plaintiffs, who engage in a “regulated
enterprise,” had the “ability to clarify the meaning of the regulation[s] by its own
inquiry,” but they have not shown here either that they attempted to do so or why
they failed to do so.80 For these reasons, Plaintiffs have not shown a likelihood of
success on the merits for their claim that the amended regulations are
unconstitutionally vague.

75

See Docket 11-1 at 16; see generally Docket 7 at 12-14.

See Docket 7 at 13-14 (“If a producer’s hemp products are declared a public nuisance, based
upon no acts that he took, what is the appeal procedure? If he refuses to permit his property to
be destroyed, could he face jail[?] If the producer has their registry from the hemp program
removed, does it entail that all of the products in their possession create criminal liability?”).
76

From the original complaint, it appears that four of the five plaintiffs in the case at that time are
businesses, and the remaining original plaintiff is a trade association. See Docket 1 at ¶¶ 5-9.
77

78

Vill. of Hoffman Ests., 455 U.S. at 498.

79

Docket 1-7 at 1-3.

80

See Vill. of Hoffman Ests., 455 U.S. at 498.

Case No. 3:23-cv-00253-SLG, AK Hemp Industrial Ass’n, et al. v. AK DNR, et al.
Order re Motion for Temporary Restraining Order or Alternative Motion for Preliminary Injunction
Page 17 of 18

As Plaintiffs have not demonstrated that they are likely to succeed on the
merits of their case for any of their claims, the Court need not and does not reach
the other three Winter requirements necessary to obtain preliminary injunctive
relief.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Plaintiffs’ Motion for
Temporary Restraining Order or Alternative Motion for Preliminary Injunction at
Docket 4 is DENIED. However, the denial is without prejudice to its renewal.
Plaintiffs have now filed an amended complaint and may have amassed additional
evidence and legal argument that could address some of the legal deficiencies
identified herein.81
DATED this 27th day of December, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

81

See Docket 14 (Am. Complaint).

Case No. 3:23-cv-00253-SLG, AK Hemp Industrial Ass’n, et al. v. AK DNR, et al.
Order re Motion for Temporary Restraining Order or Alternative Motion for Preliminary Injunction
Page 18 of 18