On January 21, 2020, an Idaho state court held that nearly 7,000 pounds of seized hemp would remain forfeited to the Idaho State Police (“ISP”).  As we discussed in our recently published article, the defendant in the case, Big Sky Scientific LLC (“Big Sky”), shipped the several thousand pounds of unprocessed hemp from Oregon to Colorado.  During the transport through Idaho, the ISP seized the shipment citing to the state’s law classifying hemp as marijuana, which is illegal in Idaho.

Big Sky sued in federal court, arguing that the clear and unambiguous language of the 2018 Farm Bill allowed the transport of hemp through any state or Indian territory.  A magistrate judge disagreed and denied Big Sky’s motion for a preliminary injunction.  Big Sky then appealed the case the Ninth Circuit, which abstained from judgment to allow the Idaho state court to resolve the case.

The Idaho court state held that the hemp seized from Big Sky was not grown pursuant to the 2018 Farm Bill and was therefore not afforded the federal protections for interstate transport provided by the Farm Bill.

The court agrees with the ISP that the prohibition on states interfering with the interstate transportation of low-THC C. sativa plants in Section 10114(b) of the 2018 Farm Bill applies only to low-THC C. sativa plants grown after the 2018 Farm Bill was enacted and grown pursuant to either an approved state regulatory plan or pursuant to those regulations promulgated by the Secretary of Agriculture to govern cannabis production. There is no genuine dispute that the plant material seized by the ISP from [Big Sky] was not.

While the ruling from the court marks a Big Sky defeat for now, the company could still appeal the case to the Idaho Supreme Court.  Moreover, while Big Sky may have not received the ruling it wanted, the case almost certainly contributed to Idaho Governor Brad Little’s decision to issue an executive order last November permitting the transport of hemp across Idaho.  The Governor’s executive order could potentially be the impetus for other states without hemp programs to authorize the transport of hemp across through their states without legislative intervention.  Nonetheless, hemp and CBD companies transporting hemp across state lines must apprise themselves of each state’s hemp laws they enter or risk a lengthy and expensive seizure of their product.

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