Petition: South Dakota Law Now Makes Schedule I Cannabis Classification Legally Impossible

The following is a work in progress.

Draft of filing that asks Department of Health to acknowledge that medical cannabis laws contradict Schedule I definition.

Update 2-1: I realized I was going about this all wrong. The following isn’t per se incorrect but there’s a much simpler stronger argument the court will prefer. I will be filing to challenge Schedule I based on the federal two part test and ruling from HHS, at some point. I have not bothered drafting and won’t begin until Pam Bondi gets around to signing what we are all waiting on her to either sign or somehow not sign. Midterms approach, timing as always is an aspect, and drafting filings prematurely is a waste of effort and inefficient. Leaving the following because this is how I do things on my blog. Maybe somebody will see something I missed.

PETITION FOR DECLARATORY RULING

 AND

MANDATORY SCHEDULING REVIEW OF CANNABIS

 

Before the South Dakota Department of Health

 

Petitioner:

Jason Karimi

Email: Jahkingdomcome23@ gmail

Telephone:

 

Date: ____________

I. NATURE OF PETITION

 

This Petition is submitted pursuant to:

 

• SDCL § 34-20B-11

• SDCL § 34-20B-27

• SDCL Chapter 1-26 (Administrative Procedures Act)

 

Petitioner seeks a formal declaratory ruling and scheduling review determination regarding the continued classification of cannabis (marijuana) as a Schedule I controlled substance under South Dakota law.

II. RELIEF REQUESTED

 

Petitioner requests that the Department of Health:

1. Issue a formal written determination as to whether cannabis can lawfully remain classified in Schedule I in light of South Dakota’s medical cannabis statutes;
2. Determine that cannabis no longer satisfies the statutory definition of a Schedule I substance under SDCL § 34-20B-11;
3. Initiate the process required by SDCL § 34-20B-27 to recommend removal or rescheduling of cannabis; and
4. Issue a final agency action subject to judicial review under SDCL § 1-26-30.

III. STATUTORY FRAMEWORK

 

A. Definition of Schedule I Under South Dakota Law

SDCL § 34-20B-11 provides that a substance may be placed in Schedule I only if ALL of the following are true:

1. The substance has a high potential for abuse;
2. The substance has no accepted medical use in the United States; and
3. The substance lacks accepted safety for use under medical supervision.

 

These are mandatory statutory criteria. Failure to satisfy any one element legally disqualifies a substance from Schedule I classification.

B. Departmental Duty to Recommend Rescheduling

SDCL § 34-20B-27 provides

“The department shall make recommendations to the Legislature that a substance be added, deleted, or rescheduled when the department determines that such substance has a different potential for abuse.”

This statute imposes a ministerial duty on the Department to recommend scheduling changes when the statutory criteria no longer fit current law or circumstances.

C. South Dakota’s Medical Cannabis Law

In 2020, South Dakota enacted SDCL Chapter 34-20G, establishing a comprehensive medical cannabis program.

That chapter expressly authorizes:

• Physicians to certify patients for medical cannabis use

• Patients to possess and use cannabis as medicine

• Licensed dispensaries to distribute cannabis

• State regulation of cultivation, testing, and dispensing

Through Chapter 34-20G, South Dakota law affirmatively recognizes that cannabis:

• Has legitimate therapeutic value

• Can be used safely under medical supervision

• Is accepted for medical treatment within this state

IV. LEGAL ARGUMENT

 

A. Cannabis Cannot Meet the Schedule I Definition as a Matter of Law

SDCL § 34-20B-11 requires that a Schedule I substance have “no accepted medical use on the United Staes.”

However, South Dakota law itself—through SDCL Chapter 34-20G—has formally recognized cannabis as a medicine with accepted use.

The State of South Dakota now:

• Licenses medical cannabis businesses

• Authorizes physicians to recommend cannabis

• Permits patients to use cannabis for medical treatment

 

A substance that South Dakota law authorizes as a medicine cannot simultaneously be deemed to have “no accepted medical use.” Therefore, cannabis fails to satisfy a mandatory element of Schedule I classification.

B. The Department Has a Legal Duty to Act

Under SDCL § 34-20B-27, when the legal and factual basis for scheduling has changed, the Department “shall make recommendations to the Legislature” to adjust the schedules accordingly.

The enactment of Chapter 34-20G constitutes a fundamental change in South Dakota law regarding cannabis. The Department therefore has a statutory duty to review and correct the current scheduling conflict.

C. The Issue Presented Is a Pure Question of Law

This Petition does not require the Department to resolve scientific disputes.

The question is legal:

Can a substance that South Dakota law expressly recognizes as medicine still legally be classified as having “no accepted medical use”?

Petitioner submits that the answer must be no.

V. REQUEST FOR FORMAL ADMINISTRATIVE ACTION

 

Petitioner specifically requests that the Department:

1. Open a formal administrative proceeding on this Petition;
2. Issue written findings of fact and conclusions of law;
3. Determine whether cannabis meets the criteria of SDCL § 34-20B-11; and
4. Provide a final decision subject to judicial review under SDCL Chapter 1-26.

VI. RIGHT TO JUDICIAL REVIEW

 

Petitioner expressly requests a decision in a form constituting “final agency action” so that any denial may be reviewed by the circuit courts pursuant to SDCL § 1-26-30.

VII. CONCLUSION

South Dakota law now recognizes cannabis as a legitimate medicine. The statutory definition of Schedule I does not permit inclusion of a substance with accepted medical use.

For that reason, the continued classification of cannabis in Schedule I is legally unsustainable.

Petitioner respectfully requests that the Department issue a declaratory ruling consistent with this Petition and commence the process necessary to remove or reschedule cannabis under South Dakota law.

Respectfully submitted,

Jason Karimi

Proposed Exhibits (Optional):

1. SDCL Chapter 34-20G excerpts
2. South Dakota medical cannabis licensing materials
3. Physician certification forms
4. Department of Health medical cannabis program documentation

 

Petitioner

 

Email: Jahkingdomcome23@ gmail

Phone:

Proposed Exhibits:

1. SDCL Chapter 34-20G excerpts
2. South Dakota medical cannabis licensing materials
3. Physician certification forms
4. Department of Health medical cannabis program documentation

 

Update 1/18/2026

This argument isn’t correct and I won’t be filing it. South Dakota’s medical cannabis statutes are exceptions to state schedule one classification. Therefore the medical statutes don’t change schedule one classification. I have a better idea for what makes schedule one invalid and it’s a good argument. I’ll post a draft of that argument sometime later this month.