Hemp Harvest

Hemp plants are seen at MERJ farms in Bristol, Tenn. Idaho is one of the few states that has not legalized hemp.

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BOISE — Gov. Brad Little on Tuesday issued an executive order that temporarily legalized interstate transportation of industrial hemp through Idaho, as a stopgap until the Idaho Legislature can address the issue more permanently.

According to the executive order, hemp produced in accordance with the 2014 Farm Bill or 2018 Farm Bill will be temporarily allowed to travel through the state.

Hemp is cannabis, like marijuana. However, by federal law, hemp can contain only .3% or less of tetrahydrocannabinol or THC, the psychoactive ingredient in marijuana. Hemp does not produce a high but is used in many products, including lotion, rope and clothing. Hemp’s extract is valuable to the CBD industry.

Under the 2014 Farm Bill, states were allowed to establish pilot programs for farmers to grow hemp in those states. Under the 2018 Farm Bill, hemp was no longer considered a controlled substance, so long as it contained .3% or less THC.

Little’s order does not legalize the possession or growth of hemp in Idaho. The order simply allows transportation of legal hemp across the state.

Idaho is one of only three states in the country without a program set up to allow farmers to grow hemp. Under Idaho law, there is no distinction between hemp and marijuana, so hemp is illegal in the state just like marijuana.

“From the start, I have stated I am not opposed to a new crop such as hemp, but that we need to be sure the production and shipping of industrial hemp is not a front to smuggle illicit drugs into and around Idaho,” Little said in a prepared statement from his office. “We expected new federal rules would eventually result in hemp lawfully traveling across state lines. My administration has prepared for this development, working with partners in law enforcement and other interested parties.”

The decision is a direct reaction to new interim rules issued Oct. 31 by the U.S. Department of Agriculture, regulating the production and transportation of hemp, according to the order.

Some Idaho attorneys — the Ada County Prosecutor’s Office among them — interpreted the new rules as legalizing interstate transportation of hemp grown under the 2014 and 2018 federal farm bills, provided the hemp complied with all federal and state regulations and was properly documented.

In the executive order, Little writes, “Idaho law as currently written will likely conflict with federal law with respect to interstate transportation of hemp permitted by the 2018 Farm Bill now that the USDA interim final rules and regulations on hemp production have been published,” and he continues, “Executive action is needed.”

“As it turns out, the rules were published at a time when the Idaho Legislature could not quickly respond,” Little said in the press release announcing the order.

The order applies to hemp brought through Idaho “on and after Oct. 31, 2019,” if it was grown under either the 2014 Farm Bill or the 2018 Farm Bill, and as long as the hemp and the person transporting the material comply with a set of criteria outlined in the order.

The person transporting the hemp, for instance, must have verification from the grower that the hemp was produced in accordance with the 2014 or 2018 Farm Bills, as well as test results from a laboratory proving the hemp complies with either of those two farm bills. The person must also have “an affirmation … that their vehicle contains no illicit drugs or variations of hemp not explicitly authorized by the 2014 Farm Bill or the 2018 Farm Bill,” according to the order. In addition to that, the person transporting the hemp must show a bill of lading with details about the amount of hemp, its destination and other things.

The order also states anyone transporting hemp through Idaho should avoid “any unnecessary delay because possession of any quantity of hemp other than for the narrow purpose of transporting across the State of Idaho in interstate commerce remains illegal in this state.”

The order is meant as a temporary solution until the Idaho Legislature can find a more permanent solution to the issue.

Legislators tried but were unable to do that in the 2019 session. The House approved a bill that would have legalized hemp in Idaho early in the session, but the bill later died. A subsequent bill introduced in the House in the final weeks of the session would have legalized interstate transport of hemp, but that bill, too, died after the Senate made changes to it.

That legislative back-and-forth played out against the backdrop of the criminal cases of three men originally charged with trafficking marijuana after police found them driving trucks filled with hemp through Ada County. Two of the men were arrested in April 2018. A third — a professional trucker transporting hemp on behalf of a Colorado-based company, Big Sky Scientific — was arrested in January.

All three settled their cases with the Ada County Prosecutor’s Office in September by pleading guilty to misdemeanors. They have no more jail time to serve.

Idaho State Police, however, have not returned Big Sky Scientific’s 6,701 pounds of hemp confiscated during the trucker’s arrest. In February, the company filed a lawsuit against state police. Both sides later asked 4th District Court Judge Jonathan Medema for a summary judgment, or a decision without a full trial. They argued the case in court Friday and the USDA’s new rules factored heavily in the arguments.

At that hearing, Merritt Dublin, the attorney representing the state police for the Idaho Office of the Attorney General, questioned whether the USDA had overstepped its bounds in interpreting the law.

“That’s what judges and the judiciary do,” Dublin said in court Friday. “That’s their expertise, not the USDA’s.”

The hemp at issue in that case was brought into Idaho before Oct. 31, so the governor’s order does not directly affect it.

“From the start, I have stated I am not opposed to a new crop such as hemp, but that we need to be sure the production and shipping of industrial hemp is not a front to smuggle illicit drugs into and around Idaho,” Little said in a prepared statement from his office. “We expected new federal rules would eventually result in hemp lawfully traveling across state lines. My administration has prepared for this development, working with partners in law enforcement and other interested parties.”

Under Idaho law, executive orders expire within four years unless they’re renewed.

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