BOISE — A Colorado-based CBD company must forfeit the 6,701 pounds of industrial hemp, at one time valued at $1.3 million, that the Idaho State Police seized a year ago as a trucker drove the product from Oregon to Colorado, a judge ruled last week.
Fourth District Judge Jonathan Medema wrote that the hemp in question, which passed tests to be considered hemp under federal law, was still a controlled substance under Idaho law. He also wrote that possession of any plants of the genus cannabis is illegal in Idaho.
“Under Idaho law, it is a crime to possess any plant with that genus, unless one possesses only the mature stalks of the plant,” Medema wrote in a 33-page memorandum filed Jan. 21 in a lawsuit between the company, Big Sky Scientific, and the Idaho State Police.
On Monday, Big Sky Scientific’s attorney Elijah Watkins did not say whether the company would file an appeal in the case. However, he said he was still assessing and evaluating the judge’s decision, and looking at pieces of the case that the Idaho Supreme Court might examine.
According to a statement from Idaho State Police, the court’s decision affirmed state troopers’ actions and found they “acted appropriately and upheld the law” in seizing the hemp. Tecia Ferguson, spokeswoman for the agency, confirmed the hemp has not been destroyed, and said the agency will not destroy it until the entire legal process is complete.
Both hemp and marijuana are plants of the genus cannabis, but industrial hemp, by federal law, must contain .3% or less of delta-9 tetrahydrocannabinol or THC, the psychoactive ingredient in marijuana. Hemp doesn’t produce a high, but it can be used in everything from clothing and lotion to beer, and provides the raw material for therapeutic CBD-based products.
Thanks to the 2018 Farm Bill, under federal law, hemp is legal for interstate transport provided it meets certain requirements. Any substance containing any THC at all, however, is considered marijuana and illegal in Idaho.
It’s why in January 2019 the Idaho State Police in Ada County confiscated a shipment of 6,701 pounds of industrial hemp belonging to Big Sky Scientific, touting it as the biggest marijuana bust in the state’s history. They arrested the trucker, 36-year-old Denis Palamarchuk, on suspicion of trafficking in marijuana; in September, he pleaded guilty to a misdemeanor charge of failure to provide supporting documents as a driver because he had a faulty bill of lading.
Palamarchuk was the third out-of-state trucker arrested in less than a year’s span for transporting hemp through Idaho. In November, Gov. Brad Little issued an executive order authorizing the interstate transport of hemp through Idaho, provided transports meet specific regulations. The Ada County Prosecutor’s Office confirmed last week it will not prosecute people who are transporting hemp grown in compliance with the requirements in the governor’s order.
Even after Palamarchuk’s criminal case was closed, the Idaho State Police did not return the hemp, which later tested at or below the federal THC requirement for industrial hemp.
In February, Big Sky Scientific sued the state police in an attempt to regain the shipment, and the two entities have been locked in a legal battle ever since.
Both sides filed motions asking Medema to issue a summary judgment, meaning a decision in favor of one side or the other without a trial, on whether the company must forfeit the hemp. He issued that judgment Jan. 21 in favor of the Idaho State Police.
Watkins, representing Big Sky Scientific, has previously argued in this case that the transportation of hemp across Idaho is legal because of the 2014 Farm Bill. The hemp was being moved from Oregon to Colorado, which both have pilot hemp-growing programs allowed under that bill. The Idaho State Police position in the case has been that hemp grown under authority of that bill was never meant for general interstate commerce and thus could not be moved across Idaho.
Medema agreed with the Idaho State Police’s stance. The 2014 Farm Bill, he wrote, invited states to set up pilot programs for higher education institutions and departments of agriculture to cultivate the crop “for the purpose of studying how the plant might be grown and marketed.”
Big Sky’s attorney argued that the Oregon farmer’s sale of the hemp to Big Sky Scientific could be considered research into the marketing of the plant, according to Medema’s ruling.
“That argument is absurd on its face, but it is also refuted by (the farmer’s) testimony,” Medema wrote. “The only reasonable inference to draw from his declaration is that he wasn’t growing the crop to do research, he was trying to make money. That factual finding alone is sufficient to conclude his crop was not grown in accordance with the 2014 Farm Bill.”
Prosecutors have argued the 2014 and 2018 farm bills required states to set up hemp-growing programs and approve them with the federal government. They argued Oregon had not done that, and Medema pointed out in his memorandum that Oregon had removed hemp from its list of controlled substances in 2009, long before the federal government did. Thus, the state conducted the process independently, long before the passage of the two farm bills.
“Even today, Oregon law precludes its Department of Agriculture from seizing those crops found to contain a THC concentration in excess of federal law if the average THC concentration is below Oregon’s threshold,” Medema wrote.
However, Medema wrote he understood why some prosecutors believe the 2018 Federal Farm Bill was a “defacto legalization of marijuana at the federal level.” The bill removed industrial hemp from the list of controlled substances. It’s impossible to tell the delta-9 THC content of a plant until it’s been grown, harvested, cut and dried, he wrote.
“It is now simply impractical for law enforcement agencies to tell ‘hemp’ from ‘marihuana’ as those terms are defined in the federal statutes,” he wrote.