ST. PAUL, Minn. - An attorney for two North Dakota farmers argued Wednesday they should be able to grow industrial hemp under state regulations without fear of federal criminal prosecution.

Attorney Joe Sandler told a panel of the 8th U.S. Circuit Court of Appeals that his clients' lawsuit against the federal Drug Enforcement Administration should move forward so that the farmers might have a chance to use their state permits to grow hemp for seeds and oil. The lawsuit was dismissed in U.S. District Court.

At the heart of the dispute is whether the farmers - state Rep. David Monson of Osnabrock, N.D., and Wayne Hauge of Ray, N.D. - can cultivate hemp under North Dakota laws without violating the federal Controlled Substances Act. Hemp is related to the illegal drug marijuana, and under that law, parts of an industrial hemp plant are considered controlled substances.

Sandler argued that while hemp plants might fall under the federal law, the law doesn't apply because the parts of the plant that could be considered a drug would never leave the farms. He also underlined the differences between marijuana and the crop the farmers want to grow, saying the judge who dismissed the case incorrectly treated marijuana and hemp as the same thing.

Industrial hemp is legally grown in several countries, including Canada, and the U.S. imports many products made from hemp seed, oil and fiber. The plant has much lower concentrations of the psychoactive chemical THC found in marijuana plants.

"The type of industrial hemp they're allowed to grow under North Dakota law … is useless as drug marijuana," Sandler said.

A nonprofit hemp advocacy group called Vote Hemp is helping pay for the farmers' legal case.

Melissa Patterson, a Justice Department attorney, told the appeals panel that Congress does have the power to regulate the crop in this case and that Congress has determined through the Controlled Substances Act that the plants, whether used for drugs or not, should be restricted.

"The question is whether or not it was rational for Congress to act as it did, and I think previously this court has said yes," Patterson said, urging the appeals court judges to uphold the dismissal.

Patterson also argued that the farmers must, as directed by Congress, first go through a registration process with the DEA to grow hemp rather than taking the issue to court. The farmers' registration request with the DEA is still pending.

But one of the appeals judges, Judge Michael Melloy, questioned Patterson about comments the judge dismissing the case had made about lengthy delays in that process. For example, it took the DEA eight years to give North Dakota State University permission to grow industrial hemp for research.

"Is that what happens with these? They sit around for eight, nine, 10 years?" Melloy asked.

Patterson replied that there had been "no unreasonable delay" in the farmers' request and said there were other legal actions they could have taken if they felt there had been too much of a delay. She declined to comment to reporters following the hearing.

"The Justice Department doesn't want the court to look at this. They want the DEA administrative process to go on and on," Tim Purdon, the other attorney representing the farmers, said following the hearing.

Monson said he paid a $2,300 fee and has been waiting since February 2007 to get a definitive answer from the DEA on whether he can grow hemp. Purdon and Sandler said an initial letter from a DEA official indicated the agency would not grant the farmers permission to grow hemp because the agency considered the plant a drug.

In the meantime, Monson said, he has lost out on the opportunity to rotate hemp with his wheat and barley crops that have been hit hard by blight and scab diseases in recent years. He said he and Hauge will wait for their case to run its course before planting hemp.

"I don't want to risk losing my farm and going to jail," Monson said.

The three-judge appeals panel isn't expected to issue a written decision on the matter for several months.