The hemp industry is closely watching a court case being argued Wednesday whose outcome could cast a shadow over interstate transportation of the highly touted commodity.

Big Sky Scientific, an Aurora, Colo., wholesale distributor of cannabidiol (CBD), which can be extracted from cannabis plants, is trying to reclaim more than three tons of hemp seized by the Idaho State Police (ISP) in January. Lawyers for the company, Ada County, Idaho, and the Idaho State Police will be presenting their cases before a three-judge panel from the Ninth Circuit Court of Appeals in Seattle.

At issue is whether the interstate transport of hemp is legal. Idaho says no, because under state law, any amount of THC is illegal in the state. Big Sky and the hemp industry, however, say the shipment of hemp that meets the definition in the 2018 farm bill by having 0.3% or less of THC, is lawful.

The saga began Jan. 24, when an Idaho State Police specialist pulled over a truck near Boise and caught the unmistakable whiff of marijuana. Another officer arrived with his dog, who “alerted” to the smell. The driver was arrested and the hemp seized.

Big Sky sued to get its hemp back, but a federal magistrate judge upheld the police seizure, agreeing with the county and the ISP that last year’s farm bill only covers hemp produced in compliance with that law.

Ada County and the ISP argue that for hemp to be produced legally, it has to have been grown under a federally approved state plan as required by the farm bill. Big Sky and hemp proponents, however, say the county and the police are misreading the law, which they say “grandfathered” hemp produced under pilot programs authorized by the 2014 farm bill.

In May, shortly after briefing was completed in the case, USDA General Counsel Stephen Vaden issued a memorandum to address questions that were swirling around hemp production in the wake of the farm bill. Among Vaden’s conclusions: States and tribes may not prohibit interstate transportation of hemp lawfully produced under a 2014 pilot program.

The seizure of legally produced hemp “is not the result that Congress intended,” says Elijah Watkins, a lawyer with the Stoel Rives law firm who is representing Big Sky. He says the company did everything by the book, purchasing licensed product whose THC level was properly tested, and hiring a “reputable transporter.”

The county and ISP, however, disagree, contending that the farm bill did not extend interstate commerce protections to hemp produced under the pilot programs. In essence, the case will come down to how the Ninth Circuit interprets the 2018 farm bill.

Asked why Idaho is pursuing the matter, ISP spokesman Tim Marsano said, “The Idaho State Police has as its mission to enforce the laws of the state of Idaho as written.” He added that the 6,700 pounds of hemp remains in ISP custody and it “seemed dry” when it was removed from the truck it was contained in a few weeks ago.

Big Sky has support from the hemp industry in the form of a friend-of-the-court brief filed by the American Trade Association of Cannabis and Hemp, who said that if the court upholds the seizure, “hemp-related interstate commerce could grind to a halt because it would give a green light to seizures like the one in Idaho at issue in this case.” And two Montana hemp growers filed a friend-of-the-court brief saying they would be unable to transport hemp out of Montana, or risk seizure (and criminal charges) by states like Idaho.

The case’s significance may fade once USDA publishes its interim final rule this fall guiding the implementation of the hemp program in the farm bill. Eric Steenstra, president of Vote Hemp, said “the case will largely become moot after USDA publishes hemp regulations.”

“Idaho officials had no business seizing this shipment as it was produced legally under the 2014 farm bill,” Steenstra said. “Hopefully they will now get that message loud and clear.”

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