Why South Dakota’s Own Statutes Now Make Schedule I Marijuana Unlawful to Maintain

“Acting Attorney General Todd Blanche is placing both FDA-approved drug products containing marijuana, and medicinal marijuana products subject to a qualifying state-issued license in Schedule III under his authority to reschedule drugs to carry out the United States’ obligations under the Single Convention on Narcotic Drugs.”¹

South Dakota, however, is not automatically bound by that federal move. Its own statutes control. The precise language of SDCL § 34-20B-11 could not be clearer: “To be included within Schedule I, a substance shall have: (1) A high potential for abuse; (2) No accepted medical use in the United States; and (3) A lack of accepted safety for use under medical supervision.”²

That language has not changed. The substances listed in Chapter 34-20B remain exactly where the South Dakota Legislature placed them, including marijuana-related substances under the hallucinogenic substances section.³ The DOJ order reschedules FDA-approved marijuana products and state-licensed medical marijuana products under federal law. It does not amend South Dakota’s codified schedules.⁴

This is where the Scalia & Garner canon of interpretation—the Fixed-Meaning Canon—applies with full force. As Scalia and Garner explain in Reading Law, “Words must be given the meaning they had when the text was adopted.”⁵ When South Dakota enacted and revised its controlled-substances schedules, the statutory text carried the public meaning it had at that time: marijuana belonged in Schedule I because it was treated as satisfying the three statutory criteria then understood to govern that schedule.⁶ The canon forbids courts from treating the state’s Schedule I list as an ambulatory reference that silently updates itself whenever the federal government changes its mind.⁷ South Dakota did not write its statutes to incorporate future federal amendments by reference; it wrote its own state schedules.⁸ The legislature could have chosen dynamic incorporation—“whatever the federal government says Schedule I means”—but it did not.⁹ Under the Fixed-Meaning Canon, the original public meaning controls unless and until the South Dakota Legislature itself changes the text.¹⁰

But fixed meaning cuts both ways. It prevents federal rescheduling from automatically rewriting South Dakota law, but it also prevents South Dakota officials from pretending the statutory words mean nothing. The Legislature did not merely say “marijuana is Schedule I because we say so.” It enacted a Schedule I standard. That standard requires no accepted medical use in the United States and lack of accepted safety for use under medical supervision.¹¹ Once the United States itself recognizes accepted medical use for FDA-approved marijuana products and state-licensed medical marijuana products, South Dakota’s continued treatment of marijuana as a Schedule I substance becomes legally unstable under South Dakota’s own words.¹²

The definition of “accepted medical use in the United States” was never precisely defined in the federal Controlled Substances Act.¹³ Federal courts have long recognized that the phrase itself lacks a self-executing statutory definition and that the DEA’s tests for it have been agency-created interpretations rather than congressional text.¹⁴ Yet the federal government’s own recent action after federal review places certain marijuana products in Schedule III.¹⁵ That placement necessarily acknowledges accepted medical use in the United States for those products—not merely in South Dakota, and not merely as political rhetoric.¹⁶ Plainly, a substance cannot comfortably remain in a state Schedule I category requiring “no accepted medical use in the United States” while the United States itself has now determined, through the federal scheduling process, that medical marijuana products subject to qualifying state-issued licenses belong in Schedule III.¹⁷

Federal rescheduling therefore has no automatic effect inside South Dakota’s borders.¹⁸ Possession, distribution, or manufacture of marijuana outside the narrow medical-cannabis exceptions created by Chapter 34-20G may still trigger state-law penalties.¹⁹ Prosecutors and courts do not need to wait for federal permission or federal reclassification to enforce the statutes the South Dakota Legislature actually wrote and has never repealed.²⁰

But enforcement is not the same thing as coherence. South Dakota can enforce an unrepealed statute while still facing a serious statutory contradiction. The state now has a Schedule I definition that says one thing, a medical cannabis chapter that says another thing, and a federal scheduling action that directly undercuts the factual premise that marijuana has no accepted medical use in the United States.²¹ That is not a culture-war talking point. It is a statutory problem.

That statutory problem is not hypothetical. In February 2026, I filed a formal Petition for Declaratory Ruling and Mandatory Scheduling Review of Cannabis with the South Dakota Department of Health, asking the Department to address marijuana’s continued placement in Schedule I under SDCL § 34-20B-11 and § 34-20B-27.²² The Department confirmed receipt of that petition, placing the issue squarely in the administrative record.²³ It later declined to reach the merits in writing, relying on procedural and authority grounds instead of defending marijuana’s Schedule I status under the statutory criteria.²⁴

That matters. South Dakota was given a clean administrative opportunity to address the contradiction before federal rescheduling made the problem even sharper. It declined. Now the contradiction is no longer only between South Dakota’s medical cannabis program and South Dakota’s Schedule I statute. It is also between South Dakota’s Schedule I statute and the federal government’s formal recognition that qualifying medical marijuana products belong in Schedule III.²⁵

To resolve that tension, the South Dakota Department of Health should be required to review the continued Schedule I treatment of marijuana and advise the Legislature. SDCL § 34-20B-27 provides that the department “shall make recommendations to the Legislature” when it determines that a substance should be added, deleted, or rescheduled because it has a different potential for abuse.²⁶ That provision is narrower than the full Schedule I test, but it still confirms the basic structure: the Department identifies scheduling problems, and the Legislature fixes the schedule.²⁷

The DOJ order changes federal law for FDA-approved marijuana products and medical marijuana products subject to qualifying state-issued licenses. It does not rewrite South Dakota’s statutes.²⁸ But South Dakota’s statutes already contain the words that now matter most. Schedule I requires no accepted medical use in the United States. The United States has now recognized accepted medical use for qualifying medical marijuana products.²⁹

The law is the law.

Footnotes

¹ Press Release, U.S. Dep’t of Justice, Justice Department Places FDA-Approved Marijuana Products and Products Containing Marijuana Subject to a Qualifying State-Issued License in Schedule III, Strengthening Medical Research While Maintaining Strict Federal Controls (Apr. 23, 2026).

² S.D. Codified Laws § 34-20B-11 (2025).

³ S.D. Codified Laws § 34-20B-14 (2025).

⁴ 21 U.S.C. §§ 811, 812 (2024).

⁵ Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012).

⁶ Id. at 78–81.

⁷ Id.

⁸ S.D. Codified Laws §§ 34-20B-10 to -14 (2025).

⁹ See Scalia & Garner, supra note 5, at 82.

¹⁰ Id. at 78.

¹¹ S.D. Codified Laws § 34-20B-11 (2025).

¹² DOJ Press Release, supra note 1.

¹³ A. Mead, The Legal Status of Cannabis (Marijuana) and Cannabidiol (CBD) Under U.S. Law, 70 Epilepsy & Behav. 288, 289 (2017).

¹⁴ Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1135 (D.C. Cir. 1994); Grinspoon v. DEA, 828 F.2d 881, 887–89 (1st Cir. 1987).

¹⁵ DOJ Press Release, supra note 1.

¹⁶ Id.

¹⁷ S.D. Codified Laws § 34-20B-11 (2025).

¹⁸ See id.; 21 U.S.C. §§ 811, 812.

¹⁹ S.D. Codified Laws §§ 22-42-6, 34-20G-1 et seq. (2025).

²⁰ Id.

²¹ Compare S.D. Codified Laws § 34-20B-11, with S.D. Codified Laws ch. 34-20G, and DOJ Press Release, supra note 1.

²² Jason Karimi, South Dakota’s Schedule I Problem Is Now in the Administrative Record, WeedPress (Feb. 23, 2026).

²³ Jason Karimi, DOH Confirms Receipt: South Dakota’s Schedule I Review Petition Is Officially in the Record, WeedPress (Mar. 5, 2026).

²⁴ Jason Karimi, South Dakota DOH Avoids the Merits on Cannabis Scheduling, Hides Behind Procedure, WeedPress (Mar. 19, 2026).

²⁵ DOJ Press Release, supra note 1.

²⁶ S.D. Codified Laws § 34-20B-27 (2025).

²⁷ Id.

²⁸ DOJ Press Release, supra note 1.

²⁹ Id.; S.D. Codified Laws § 34-20B-11 (2025).