South Dakota’s Cannabis Scheduling Petition Process Does Not Mirror Federal Law — But It Is Still a Formal Process

South Dakota’s Cannabis Scheduling Petition Process Does Not Mirror Federal Law — But It Is Still a Formal Process

By Jason Karimi | WeedPress

February 21, 2026

A common objection to South Dakota cannabis scheduling petitions is that the state controlled substances chapter does not contain a federal-style petition clause. That objection is partly correct. It is also incomplete.

Federal law is explicit. Under 21 U.S.C. § 811(a), scheduling proceedings may be initiated “on the petition of any interested party.” South Dakota’s Controlled Substances Act does not use that same structure inside its scheduling chapter. There is no direct in-chapter equivalent that mirrors the federal text.

But it does not follow that there is “no process.”

South Dakota uses a different structure. The petition path is split across the Administrative Procedures Act and the controlled-substances statutes. In practice, that means a petitioner proceeds through South Dakota’s APA mechanisms while tying the requested ruling to the controlled-substances criteria and the Department’s statutory duties.

That distinction matters because it changes the legal question. The issue is not whether South Dakota copied the federal CSA’s petition language. It did not. The issue is whether South Dakota law still provides a formal mechanism for asking the Department of Health to issue a legal determination and, if warranted, trigger the recommendation process the statutes assign to it.

It does.

South Dakota’s APA provides a formal declaratory-ruling procedure. SDCL § 1-26-15 authorizes agencies to issue declaratory rulings on the applicability of statutes, rules, or orders, and those rulings are treated as agency decisions for review purposes. The Department of Health has implemented that process by rule in ARSD 44:62:01:01, which sets out the form for a petition for declaratory ruling. That is not an informal advisory conversation. It is an administrative procedure recognized by statute and agency rule.

South Dakota’s APA also provides a separate rulemaking-petition mechanism under SDCL § 1-26-13. That is another formal route, even if the agency ultimately denies the request. The point is not that either petition guarantees relief. The point is that South Dakota law does provide formal procedural vehicles for putting the issue before the agency.

The controlled-substances chapter then supplies the substantive framework. SDCL § 34-20B-11 sets the statutory criteria for Schedule I classification. SDCL § 34-20B-27 addresses the Department’s recommendation function when it determines a substance has a different abuse potential. Those provisions are not the same as federal § 811(a), and they do not create a direct federal-style “interested party petition” trigger. But they do define the legal standards and departmental duties that can be invoked through the APA petition process.

That is why the central question is not whether South Dakota mirrors federal law. It does not. The central question is narrower and more important:

Does the Department of Health have to interpret and apply the statutes it administers when a petition is filed through South Dakota’s formal APA process, or can it refuse and stop at “no authority”?

That is the real administrative-law issue.

The agency may deny relief. It may argue it cannot directly rewrite legislative scheduling choices. That is a foreseeable position. But even then, the process still matters because it forces the agency to state its position in a formal posture: whether it is declining on authority grounds, discretionary grounds, or statutory-interpretation grounds.

For a petitioner building a record, that difference is everything.

South Dakota’s process is not the federal process. It was not designed to be. But it is still a process, and it is formal enough to matter.

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Footnotes

1. U.S. Congress (2026) 21 U.S.C. § 811(a): Authority and criteria for classification of substances (proceedings may be initiated “on the petition of any interested party”).

2. South Dakota Legislature (2026) SDCL § 1-26-15: Declaratory rulings by agencies.

3. South Dakota Department of Health / Administrative Rules of South Dakota (2026) ARSD 44:62:01:01: Form of petition for declaratory ruling.

4. South Dakota Legislature (2026) SDCL § 1-26-13: Petition for promulgation, amendment, or repeal of rules.

5. South Dakota Legislature (2026) SDCL § 34-20B-11: Schedule I criteria.

6. South Dakota Legislature (2026) SDCL § 34-20B-27: Department recommendations to the Legislature regarding scheduling.