GULFPORT, Miss. - A federal judge says Harrison County Sheriff George H. Payne Jr. made an honest mistake when the sheriff destroyed what he and other law officers thought were marijuana plants, and the plants turned out to be deer food.

Marion Waltman's attorney said this week that he is appealing U.S. District Judge Louis Guirola Jr.'s order in May that dismissed Waltman's civil lawsuit against Payne.

Waltman had claimed the sheriff violated his rights by destroying more than 500 kenaf plants grown as deer food.

Waltman sought a $255,000 settlement from the Sept. 8, 2003, raid on land leased for the Boarhog Hunting Club. Waltman, who had planted the kenaf, was watching a television news report when he saw inmate workers chopping down plants and heard the sheriff say the plants appeared to be marijuana.

Waltman, 55, of Pass Christian, declined to comment Tuesday. So did Payne.

Guirola determined that Payne was acting within his official capacity and within the scope of discretionary authority. Qualified immunity shields Payne from liability because his conduct was "objectively reasonable."

"The sheriff was faced with facts and circumstances which would lead a reasonable and prudent officer to conclude that the growing crop probably was marijuana," wrote Guirola.

"Virtually all of the law enforcement officers at the scene ... mistakenly identified the kenaf crop as marijuana. Thus, it was not objectively unreasonable for Sheriff Payne to reach the same conclusions."

Court records show an informant reported the crop as marijuana to state narcotics agents and U.S. Drug Enforcement Administration officers. The plants were scattered among other plants, a technique common among marijuana growers, authorities said.

A field test on a sample plant did not identify it as marijuana. Payne ordered the plants seized and sent samples to the state Crime Lab.

Chet Nicholson, Waltman's attorney, said the Crime Lab's tests were inconclusive. A Mississippi State University test that Nicholson commissioned showed the plant was kenaf.

Guirola ruled that "an unconfirmed field test" does not indicate Payne acted unreasonably.