The Department proposes to end home cultivation for patients under 21. Legislative lawyers say the statutory support is “quite weak.” The same review never reaches the federal gaps already sitting in the rulemaking record. Read LRC review of the Department’s proposal to prohibit homegrown rights for South Dakota cannabis patients here: https://rules.sd.gov/Uploads/970_LetterLRCApproval.pdf
The South Dakota Department of Health opened 38 sections of its medical-cannabis rules this summer. Buried inside that package is a much simpler change: a qualifying patient under twenty-one would no longer be allowed to cultivate cannabis or designate a caregiver to cultivate on the patient’s behalf.¹
LRC’s 74 page September 4 review of the Department’s 54 page proposed rules noticed. LRC attorney Anna Madsen asks the question directly: “Does the department have the authority to prohibit someone under 21 from cultivating cannabis?”²
Code Counsel Justin Goetz then follows the authority problem through the statutes. There are provisions that arguably give Health discretion over cultivation applications. There are other twenty-one-year-old thresholds elsewhere in chapter 34-20G. But Goetz says he could find no statutory guidance for this categorical twenty-one-year-old cutoff.
His conclusion deserves to be read without embellishment:
“Law Implemented/intelligible standards supporting this content is quite weak, without more statutory authority.”³
That is the Legislative Research Council talking about a Department of Health proposal that would narrow who may exercise South Dakota’s home-cultivation provisions.
The Department held its public hearing on the package Wednesday. The written-comment period remains open through October 3.
Now the legal review behind the package is part of the paper trail.
LRC points to a statutory explanation for eighteen. It cannot find one for twenty-one.
The proposed amendment is in ARSD 44:90:02:07.
The draft says an “age-restricted cardholder” may not cultivate but, unless a nonresident, may designate a caregiver to cultivate. It then adds a different rule for another group: a qualifying patient under twenty-one may neither cultivate nor designate a caregiver to cultivate.⁴
Goetz notes that the existing eighteen-year-old threshold had an explanation tied to SDCL 34-20G-33. He could identify nothing comparable for the proposed twenty-one-year cutoff. He distinguishes between the Department’s general authority to regulate the cultivation application and the statutory standards supporting this particular substantive restriction.⁵
That distinction matters.
An agency having authority to write an application rule does not necessarily answer whether the Legislature authorized every substantive condition the agency might place inside that application rule.
LRC’s markup then starts examining the citations Health placed beneath 44:90:02:07.
One cited provision, Madsen says, does not expressly provide authority to promulgate rules and should be struck. Another gives the Department authority to promulgate rules governing medical cannabis establishments, and she questions whether that authority can be stretched into a rule governing patient home cultivation. LRC also questions several of the statutes Health identified as the “Law Implemented.”⁶
This is not LRC holding that the rule is invalid. It is something more precise and more useful: the Legislature’s own rule-review staff is telling Health that the statutory bridge supporting the proposed restriction is weak.
That is exactly what administrative review is supposed to expose before a rule becomes law.
The new restriction collides with another part of 44:90
The problem does not stay inside 44:90:02:07.
When LRC reaches the caregiver provisions, it finds another rule that still contemplates parents or legal guardians sharing a cultivation designation for an “age-restricted cardholder.” Under Article 44:90, that term describes a cardholder under eighteen.
Madsen points out the collision: leaving that section unchanged “appears to conflict” with the proposal prohibiting anyone under twenty-one from designating a caregiver to cultivate.⁷
That is the problem with changing one noun or age line in an administrative code that has accumulated rules around it.
The twenty-one-year proposal is not merely a sentence saying no.
It changes who can grow, who can designate somebody else to grow, how caregiver rules operate, and how provisions written around the existing age structure fit together.
LRC found the seam.
This is not the only place LRC asks whether Health needs the Legislature
Another legality comment appears in 44:90:02:12, governing a designated caregiver who no longer wishes to serve.
Goetz writes that the section “does not squarely fall under any of the subdivisions listed in SDCL 34-20G-72.” His preferred solution is notable: “Ideally, this gets addressed in bolstered statutory authority through a bill.”⁸
Madsen separately questions the Department’s cited Law Implemented because the statute does not specifically address a caregiver voluntarily deciding to stop serving.⁹
Again, this is not a judicial holding that Health lacks authority.
It is LRC identifying the difference between fixing language in a rule and obtaining authority from the Legislature.
That difference should not disappear when the final draft is prepared.
Health’s “no impact on government” fiscal note did not survive review untouched
The cover letter identifies another problem.
Health’s Form 5 fiscal note says the package has “[n]o impact on government” and requires “[n]o additional medical cannabis staff or resources.” Its Form 6 notice, meanwhile, describes part of the proposal as an effort to “modernize administrative processes.”
LRC says those representations are “hard to reconcile.”¹⁰
LRC directs the Department to resubmit Form 5 with an explanation before the final packet goes to LRC staff and the Interim Rules Review Committee.¹¹
That intersects with an issue WeedPress already placed in the administrative record.
On September 10, I submitted written comments asking Health to put its own patient, establishment, and homegrow numbers into the rulemaking record and explain the economic assumptions behind the package. The comment also asked Health to identify which amendments, if any, respond to the April 2026 federal Schedule III changes.¹²
Four days later, after reading the proposed rules and Form 14 line by line, I supplemented that comment.
The September 14 supplemental comment focused on 44:90:12:03 and 44:90:12:11. It asked how Health could describe the proposed submit-review-approve-implement-and-verify corrective-action process as creating no implementation, compliance, administrative, or recordkeeping cost. It also asked Health to explain its small-business denominator, alternatives considered, and the written materials underlying the October 2025 stakeholder process.¹³
Those were not blog questions sent into the air.
Both letters were submitted to Health for inclusion in the official written-comment record for this rulemaking. The September 14 supplement expressly asked the Department to address those matters before presenting the rules to the Interim Rules Review Committee.¹⁴
Now LRC has independently told Health that another part of its fiscal presentation needs an explanation.
Different question. Same file.
LRC reviewed state authority. It did not publish the federal crosswalk.
There is also something the 75-page LRC review does not do.
LRC reviewed the proposed rules for “form, style, clarity, and legality.”¹⁵ Its markup is extensive. It examines statutory authority, Law Implemented citations, cross-references, definitions, internal conflicts, and administrative-rule drafting.
The packet does not provide the federal-state crosswalk that WeedPress has been documenting since the April 28 federal order exempting state programs from federal criminality. That omission should not be turned into a claim that LRC approved or rejected those federal issues. It did neither in this packet.
The federal questions sit on another desk.
The April 28 order added 21 C.F.R. § 1301.13(k). Article 44:90 never mentions Part 1301. South Dakota issues four establishment certificates. The federal expedited pathway names three registrations. The testing-facility rule already requires DEA registration under a June 28, 2021 citation, years before subsection (k) appeared.¹⁶
None of that means LRC missed a defect it was required to find. It means the September 4 packet answers a narrower question: whether Pierre’s proposed words fit Pierre’s statutes.
Health has not published the crosswalk for what happens where Pierre’s nouns now meet the federal nouns.
The federal issue was already put in front of Health
This did not begin with the 38-rule package.
On August 31, I filed a declaratory-ruling petition asking Health to apply South Dakota’s own controlled-substances statutes after the federal change. The petition asks whether hashish, hash oil, and tetrahydrocannabinol still satisfy all three Schedule I criteria in SDCL 34-20B-11, including the statutory requirement of “no accepted medical use in the United States,” and whether a contrary determination triggers Health’s recommendation duty under SDCL 34-20B-27.¹⁷
That petition is a separate proceeding.
I said so again in the September 14 rulemaking comment. The Article 44:90 hearing is not the determination contemplated by SDCL 34-20B-27.¹⁸
But separate proceedings can expose the same institutional problem.
Health administers the patient-and-establishment program in chapter 34-20G. It participates in South Dakota’s controlled-substance framework under chapter 34-20B. Article 44:90 now operates beside a federal registration regime that expressly uses state medical-marijuana licensing as part of its machinery.
The September 4 LRC review asks whether Health has enough state statutory authority for some of what it wants to add.
The federal record asks what happens when the state rules Health already administers connect to the new federal machinery.
Neither question disappears because the other exists.
The next draft matters more than the first one
There is one procedural sentence in the LRC letter worth keeping on the desk.
Under SDCL 1-26-4(4), LRC tells Health it is required to adopt LRC’s recommendations, subject to an appeal to the Interim Rules Review Committee for the Committee’s final determination. LRC can also withdraw recommendations when an issue is resolved through discussion with agency staff.¹⁹
So the September 4 markup is not the ending.
It gives us a comparison file.
The August 21 proposal shows what Health wanted to write.
The September 4 LRC review shows where legislative staff found problems.
Wednesday’s hearing and the written-comment period add the public record.
Then Health has to show its work in the final packet.
LRC’s instructions say that packet must include the minutes of the public hearing, the written comments, the regulatory-impact analysis, fiscal material, and the final rules as adopted before committee review.²⁰
That is where the homegrow question gets harder to hide.
If Health keeps the categorical under-twenty-one restriction, the final file can show what statutory authority it relies on after LRC said the intelligible standards supporting the restriction were “quite weak.”
If Health changes it, the redline will show that.
If LRC withdraws the recommendation after discussions with Health, the final record will show whether the recommendation remained.
And if Health declines a recommendation and takes the matter to the Interim Rules Review Committee, then the disagreement moves into another public proceeding.
The rulemaking process has finally produced the document that tells us where legislative lawyers themselves stopped and asked:
Where did the Legislature authorize this removal of homegrown rights by the agency?
For South Dakota patients whose right to cultivate at home would disappear under the Department’s proposed twenty-one-year line, that is not a drafting question.
It is the question.
Footnotes
¹ S.D. Dep’t of Health, Proposed Amendments to S.D. Admin. R. art. 44:90, § 44:90:02:07 (filed Aug. 21, 2026), reproduced with Legislative Research Council recommendations in Letter from Justin J. Goetz, Code Counsel, S.D. Legislative Research Council, to Jennifer Jorgenson, S.D. Dep’t of Health (Sept. 4, 2026) [hereinafter LRC Review]. https://rules.sd.gov/Uploads/970_LetterLRCApproval.pdf
² LRC Review, supra note 1, comment AM35.
³ Id. comment JG36R35.
⁴ Id. § 44:90:02:07.
⁵ Id. comment JG36R35. S.D. Codified Laws § 34-20G-33 governs issuance of a registry identification card to a qualifying patient younger than eighteen. It is not independently a twenty-one-year cultivation statute.
⁶ Id. comments AM42–AM49 & JG45–JG47.
⁷ Id. § 44:90:02:10, comment AM51.
⁸ Id. § 44:90:02:12, comment JG73.
⁹ Id. comment AM74.
¹⁰ Letter from Justin J. Goetz, Code Counsel, S.D. Legislative Research Council, to Jennifer Jorgenson, S.D. Dep’t of Health 1 (Sept. 4, 2026).
¹¹ Id.
¹² Jason Karimi, My Written Comments to South Dakota Health: Put the Numbers in the Rulemaking Record, WeedPress (Sept. 10, 2026), https://weedpress.org/2026/09/10/my-written-comments-to-south-dakota-health-put-the-numbers-in-the-rulemaking-record/.
¹³ Jason Karimi, After Reading South Dakota’s 54-Page Cannabis Rule Draft, I Filed a Supplemental Comment on What Form 14 Doesn’t Explain, WeedPress (Sept. 14, 2026), https://weedpress.org/2026/09/14/after-reading-south-dakotas-54-page-cannabis-rule-draft-i-filed-a-supplemental-comment-on-what-form-14-doesnt-explain/.
¹⁴ Id. The supplemental comment asks Health to include the letter in the complete written-comment record and address the identified matters before presentation to the Interim Rules Review Committee.
¹⁵ LRC Review, supra note 1, at 1.
¹⁶ 21 C.F.R. § 1301.13(k) (as amended Apr. 28, 2026); Jason Karimi, Part 1301 Defers Security to State Law. Article 44:90 Never Mentions Part 1301, WeedPress (Sept. 22, 2026), https://weedpress.org/2026/09/22/part-1301-defers-security-to-state-law-article-4490-never-mentions-part-1301/; Jason Karimi, South Dakota Already Requires Testing Labs to Register With DEA. The New Subsection (k) Does Not Name a Testing Class, WeedPress (Sept. 22, 2026), https://weedpress.org/2026/09/22/south-dakota-already-requires-testing-labs-to-register-with-dea-the-new-subsection-k-does-not-name-a-testing-class/; S.D. Admin. R. 44:90:06:01.
¹⁷ Jason Karimi, WeedPress Asks South Dakota Health Department to Rule Whether Schedule I Cannabis Still Fits the State’s Own Statute, WeedPress (Aug. 31, 2026), https://weedpress.org/2026/08/31/weedpress-asks-south-dakota-health-department-to-rule-whether-schedule-i-cannabis-still-fits-the-states-own-statute/; S.D. Codified Laws §§ 34-20B-11, -27.
¹⁸ Karimi, After Reading South Dakota’s 54-Page Cannabis Rule Draft, supra note 13.
¹⁹ LRC Review, supra note 1, at 1; S.D. Codified Laws § 1-26-4(4). See also S.D. Codified Laws § 1-26-6.5 (code counsel’s legality review is a determination that the rule is authorized by the standards provided in the statutes cited by the agency).
²⁰ LRC Review, Directions for Submitting the Final Draft (Aug. 2026); S.D. Legislative Research Council, Administrative Rules of South Dakota Drafting Manual (rev. Sept. 2026), https://mylrc.sdlegislature.gov/api/Documents/72140.pdf.
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