Nebraska AG Hilgers joins opposition to reclassifying weed as less-dangerous drug

A marijuana plant at the Dakota Herb grow operation near Tea, SD. (John Hult/South Dakota Searchlight)

LINCOLN — Nebraska Attorney General Mike Hilgers sent a letter this week from 11 red states arguing that the Biden administration should not reclassify marijuana from a Schedule I drug to the lesser classification of Schedule III.

The attorneys general from Alabama, Arkansas, Indiana, Iowa, Kansas, Louisiana, Mississippi, Montana, South Carolina and South Dakota joined Hilgers’ argument that the consequences of legalization in a handful of nearby states have been negative enough — and raised legal questions about the federal process. Such letters are often precursors to lawsuits.

Schedule I drugs are those classified by the federal government as having no medical use and being prone to misuse. Drugs in schedules II-V each have some medical uses, but less potential for abuse with each step down the scale.

In the letter to U.S. Attorney General Merrick Garland, Hilgers and the others argued the federal proposal is invalid because it did not follow the proper regulatory step of being approved by the right part of the Drug Enforcement Agency and also risked violating obligations under a major international treaty on narcotics.

Questions legal basis

The letter argues that the rescheduling has no legal basis and contradicts previous federal findings about marijuana. They asked that the DEA not issue a final rule reclassifying the drug.

“Suffice to say, moving marijuana to Schedule III will turbocharge the existing marijuana industry in states where legalization has already taken root,” the letter read. “That, in turn, will compound the harms already flowing from the increased availability of “state-legal” marijuana that Nebraska and similarly situated states have and will continue to suffer.”

The Biden administration has argued that rescheduling marijuana will help with research about the drug and its use as a medicine.

As Nebraska has during previous efforts to stop legalization, Hilgers pointed to spillover criminal enforcement issues in counties bordering Colorado after that state started allowing recreational marijuana.

He wrote that Nebraska saw its arrest rate for marijuana-related offenses climb by 11% and saw the costs of marijuana-related enforcement increase about as much. Most of those increases came near the Colorado border, he wrote.

“Placing marijuana on Schedule III will send a tidal wave of legal marijuana flooding into Nebraska (and similarly situated States that have yet to legalize recreational marijuana but border States that have), that will make previous access expansions look like a drop in the bucket,” Hilgers wrote.

Voters may soon weigh in

Hilgers and South Dakota Attorney General Marty Jackley both argued in statements this week that the change in federal classification would not alter the existence or enforcement of state laws against marijuana.

Nebraskans will find out soon if a petition effort turned in enough signatures to vote this fall on allowing medical marijuana.

South Dakota voters will decide on Nov. 5 whether to legalize recreational marijuana, marking the state’s third straight general election with such a measure. Voters backed it in 2020 as part of a constitutional amendment that sought to legalize medical and recreational marijuana.

That vote was later challenged and overturned by the South Dakota Supreme Court, which decided that it violated the state constitution’s single-subject rule by lumping together two types of cannabis use. A standalone recreational marijuana measure failed in the 2022 midterm elections.

South Dakota voters approved medical marijuana in 2020 in a separate ballot initiative. The state issued its first medical marijuana cards in late 2021. The 2024 South Dakota petition, if approved, would allow adults 21 and older to possess, grow, ingest and distribute marijuana and marijuana paraphernalia, with certain restrictions.

“South Dakota voters have legalized medical marijuana and will have the opportunity this election to determine whether to legalize recreational marijuana in our state,” Jackley said in a press release. “The Biden administration’s attempt to reschedule marijuana right before the election without proper authority will be harmful to states like South Dakota that have not fully legalized both medical and recreational marijuana.”

This article first appeared in the South Dakota Searchlight , a sister site of the Nebraska Examiner in the States Newsroom network.

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