WeedPress: The Paper Trail

DEA’s Oct. 29 brief says a GAO report on how drugs get scheduled is “not probative” to the marijuana hearing. Opponents, including Nebraska, Idaho and Indiana, want marijuana kept in Schedule I. Replies are due Nov. 5. South Dakota’s licensed medical businesses sit on a separate federal track.

By Jason Karimi, Publisher

The Drug Enforcement Administration has asked the judge presiding over its marijuana rescheduling hearing to give “no weight” to a recent Government Accountability Office, or GAO, report. In an Oct. 29 brief, DEA’s lawyers wrote that the report “is not probative to the instant rescheduling analysis and, as a result, should be given no weight by this Tribunal.”¹ Marijuana Moment and The Marijuana Herald reported briefs filed the same day by rescheduling opponents, including a joint brief from Smart Approaches to Marijuana and the states of Nebraska, Idaho and Indiana. Those reports say some opponents asked the judge to rely on the report. WeedPress could not access those briefs. Replies are due Thursday, Nov. 5.²,³

For South Dakota, the hearing matters, but it is not the proceeding that covers the state’s medical program today. For South Dakota’s licensed medical cannabis businesses, the federal document WeedPress has identified is a separate April order. For dispensaries, there is also DOJ’s Oct. 30 registration announcement.⁴,⁵ The hearing notice describes a hearing on the broader rescheduling proposal. WeedPress found nothing in it saying the hearing will review the April order.⁶ This article explains what was filed, what the hearing process covers, and where South Dakota fits.

What was filed

The hearing concerns DEA’s May 2024 proposal to move marijuana from Schedule I to Schedule III.⁷,⁸ The April 28 hearing notice says its purpose is to “receiv[e] factual evidence and expert opinion regarding” whether marijuana should be transferred to Schedule III.⁶ According to DEA’s Oct. 29 brief, Chief Administrative Law Judge Derek C. Julius heard testimony from June 29 to July 15, 2026, and post-hearing briefs were filed Aug. 27.⁸

On Sept. 23, GAO published a report on how DEA and the Department of Health and Human Services schedule drugs.⁹ The report found that DEA’s final scheduling decisions matched HHS’s recommendation for all 84 substances for which DEA had published a final decision during the 2020–2025 study period. It also found policy gaps, including that “DEA does not have any policies or procedures regarding how its staff are to conduct evaluations or schedule substances.” The Justice Department and HHS concurred with GAO’s recommendations.⁹ The report’s Appendix I walks through the recent marijuana rescheduling actions.¹⁰ WeedPress posted an excerpt from the report’s discussion of the two-part accepted-medical-use test on Sept. 23.¹¹

DEA’s brief says that on Sept. 28, three opposing parties, DUID Victim Voices, Kenneth Finn, M.D., and the National Drug and Alcohol Screening Association, asked to add the GAO report to the record. The judge stayed the case on Sept. 29. On Oct. 22, he admitted the report and asked for briefs on the “weight, if any the tribunal should give to the GAO Report.”⁸,¹² According to DEA’s brief, the order also says “the GAO Report speaks for itself regarding its conclusions on the general rescheduling process and documentation about that process.”¹² WeedPress has not obtained the Oct. 22 order itself.

DEA’s brief argues the report does not bear on the findings for Schedule III, which the brief describes as abuse potential, accepted medical use and dependence risk.¹³,¹⁴ The brief says “Movants have not demonstrated that the substance of the GAO Report has any probative value on any of the three findings.”¹³ On abuse potential, the brief says the factors the government used “were published and publicly available to the parties for more than two years prior to the hearing.”¹⁵ On accepted medical use, it says “There is simply no substantive commentary (critical or otherwise) about the two-part CAMU test in the GAO Report.” On dependence, it says “there is no substantive finding relative to HHS’s dependence risk assessment.”¹⁶ The brief closes by asking the judge to “give the GAO Report no weight.”¹⁷

Briefs from rescheduling opponents were reported by Marijuana Moment and The Marijuana Herald. WeedPress could not access the posted copies, so the quotes below come from those reports and have not been checked against the filings.²,³

• Smart Approaches to Marijuana and the states of Idaho, Indiana and Nebraska filed a joint brief, according to Marijuana Moment. As quoted by Marijuana Moment, it says: “It is arbitrary and capricious for an agency to publish inconsistent evaluations of the same drug merely by shifting inputs and prioritizing different information,” and “The Tribunal should recommend that marijuana remain in Schedule I.”²
• The National Drug and Alcohol Screening Association, DUID Victim Voices and Dr. Finn argued, as quoted by Marijuana Moment, that the report “deserves decisive weight.”²
• The Tennessee Bureau of Investigation also filed, according to The Marijuana Herald, which reported that Tennessee argued DEA failed to do its own eight-factor analysis before the proposal was issued.³

DEA’s certificate of service lists counsel for “The States of Nebraska, Idaho, Indiana, and Louisiana” as one party group.¹⁸ South Dakota does not appear on that certificate of service.¹⁸

What happens after the Nov. 5 reply deadline

Marijuana Moment reported that the Oct. 22 order said the case “remains STAYED until the time for briefing is closed,” and that the stay “will expire by its own terms at the conclusion of this briefing schedule.”¹⁹ Replies are due Nov. 5.²,³

DEA’s hearing rules lay out the next steps but set no deadline for the judge’s report. The judge prepares a report with recommended findings and a recommended decision “as soon as practicable.” Parties then have 20 days to file exceptions. At least 25 days after serving the report, the judge certifies the record to the DEA Administrator. The Administrator then publishes a final order in the Federal Register. That order generally takes effect at least 30 days after publication unless the Administrator finds the public interest requires an earlier date.²⁰ WeedPress found no published date for the judge’s report.

The judge’s report is a recommendation. Under the rules, the final order comes from the Administrator.²⁰

Why South Dakota’s program is on a different track

On April 28, 2026, the Justice Department issued a separate order under 21 U.S.C. § 811(d)(1).⁴ That provision covers scheduling needed to meet U.S. treaty obligations, and, as the order explains, it allows action “without regard to” the findings and procedures that govern ordinary scheduling.²¹ The order placed in Schedule III FDA-approved drug products containing marijuana and “marijuana subject to a state medical marijuana license.”⁴ The same day, DOJ withdrew the August 2024 hearing notice and issued a new hearing notice on the broader proposal.⁶,⁸

Federal rules define a “State medical marijuana license” as a state license “authorizing the licensee to manufacture, distribute, and/or dispense marijuana or products that contain marijuana for medical purposes.”²² The registration rule says those registrations “do not authorize the manufacture, distribution, dispensing, or use of marijuana or products containing marijuana for non-medical purposes.”²³ On Oct. 30, DOJ said it had registered “more than 900 dispensaries across Alabama, Florida, Mississippi, South Dakota, Texas, Virginia, and West Virginia.”⁵ The release did not name the businesses or give a count by state.⁵

So the GAO fight is about the broader proposal to move marijuana generally, not only marijuana under a state medical license, to Schedule III. WeedPress found nothing in DEA’s brief or the hearing notice saying the hearing will reopen the April order.¹,⁶

WeedPress analysis. As WeedPress reads the documents, the broader proposal concerns marijuana generally, separate from the April order’s medical-license category. That April order is the federal document WeedPress has identified as most directly addressing South Dakota’s licensed medical businesses today. The two tracks are different, and the documents do not say when the broader proposal will reach a final order.

One South Dakota question sits at that line. A South Dakota patient’s registry application includes “a designation as to whether the qualifying patient or designated caregiver will be allowed under state law to possess and cultivate cannabis plants for the qualifying patient’s medical use.”²⁴ The federal definition above speaks to a state license authorizing “the licensee” to manufacture, distribute or dispense.²² WeedPress has not found DEA guidance on whether state-authorized home cultivation falls under the April order. That is an open question, not a conclusion. A petition was filed asking DEA to add homegrown protections. Weedpress will report the DEA reply on that petition when it is issued.

What South Dakota patients and businesses can watch

• Nov. 5: reply briefs on the GAO report are due. Marijuana Moment reported that the stay ends when briefing closes.²,¹⁹
• The judge’s report: no date has been set. Exceptions follow within 20 days of service.²⁰
• Any final order: it would be published in the Federal Register, with an effective date generally at least 30 days later.²⁰
• The April order and registrations: the April order is the federal document WeedPress has identified for South Dakota’s licensed medical businesses now, and DOJ’s Oct. 30 announcement addresses dispensary registrations.⁴,⁵ WeedPress’s Oct. 31 report covered DEA’s timely-applicant list and what, in WeedPress’s reading, it can and cannot show.²⁵

WeedPress analysis: Nothing in the Oct. 29 briefs changes South Dakota law. Medical cannabis remains legal under state law for registered patients and licensed establishments.²⁶