Psychiatric nurse Bryan Krumm's opinion of the state's medical marijuana program is not an uncommon one. "Until they can keep the federal government out of the program, they are not going to be able to make our program functional."

The Department of Health established regulations regarding the growth and distribution of medical marijuana last week. The department accepting applications from nonprofit businesses interested in producing medical marijuana.

Krumm filed suit against the U.S. attorney and others general in District Court to combat federal interference, and he's using a stipulation in the Controlled Substances Act to do it.

The act is broken into " schedules, " which are classifications for various drugs. Marijuana is listed in the most restrictive category, Schedule I. According to the act, these drugs have no medical uses. Cocaine and opiates are listed as Schedule II drugs, because they have medical applications.

Krumm works at Sage Neuroscience Center in Albuquerque. He argues that once California created a medical marijuana program in 1996, cannabis should have been bumped to a less restrictive schedule. "Once it has accepted medical use," says Krumm, "it no longer meets criteria for placement in Schedule I." Krumm says his is the first lawsuit in the country that is using the Controlled Substances Act itself to justify the removal of marijuana from Schedule I.

He tried asking the state to move marijuana to a lower schedule in the state's Controlled Substances Act, but the New Mexico Pharmacy Board refused. "It was just an attempt to get it out of this arbitrary placement," he says. "Right now in the state of New Mexico, it's listed both in Schedule I and Schedule II."

William Harvey, executive director of the Pharmacy Board, says it's not up to the board to move a drug from one schedule to another. It's up the the Legislature, he says. "The Legislature has given the board the ability to schedule substances that aren't recognized yet—like there's always chemicals or drugs that are invented. But the board can't take something that's already in a schedule and move it to another one unless the Legislature has given us the authority. And it hasn't."

But Harvey added there's no doubt state law permits medicinal marijuana through the Department of Health. Marijuana is listed in Schedule I under the state's Controlled Substances Act. It's also part of Schedule II, but only for use by certified patients in the state's medical cannabis program. Marinol, which is synthetic THC, is categorized in Schedule III.

Krumm will argue his case against the federal government in a couple of months. If he succeeds in proving the Drug Enforcement Administration has been illegally maintaining Schedule I placement of marijuana, it would open options for people around the country.

Rescheduling would prevent the federal government from saying it's against federal law for these state programs to operate, he says. "There are so many people who are suffering needlessly for lack of a needed medication," Krumm adds. "Marijuana has unique therapeutic value that can't be mimicked by any other class of medication. It's one of the safest therapeutically active substances known to man."'