Marijuana Law, Policy, and Authority

Update: State Judge Upholds Idaho Seizure of Massive Hemp Shipment (and Gets Lost Along the Way)

Posted by on Monday, February 3, 2020 in News, Updates.

This is an update on an interesting case I blogged about last January. See Federal Court Refuses (for now) to Order Return of 7,000 Pounds of “Hemp” Seized by State Police. I encourage readers to review my earlier post before diving into this post, which covers some key developments in the case since last January, including a recent (January 21, 2020) state court decision upholding the seizure. As I discuss in more detail below, I think the state court reached the correct outcome. However, its decision also contains some erroneous findings that – if left uncorrected — could generate needless confusion about the 2018 Farm Bill.

Let me start with some background . . .

1. Background

The case stems from the January 2019 seizure of roughly 7,000 pounds of “cannabis plant material” by the Idaho State Police (ISP). The material was being transported from Oregon (where it was grown) through Idaho to a facility in Colorado.

ISP initiated state forfeiture proceedings, but while those proceedings were underway, Big Sky Scientific—the owner of the plant material—filed a lawsuit against ISP in federal court. Big Sky challenged the legality of the seizure under the 2018 Farm Bill. It asked the federal court for, inter alia, an emergency Temporary Restraining Order (TRO) that would compel ISP to return its plant material immediately.

The federal court quickly denied Big Sky’s motion for the emergency TRO. My earlier post focused on the federal court’s February 2, 2019 decision. In a nutshell, the court found that Big Sky’s cannabis plant material – grown before the 2018 Farm Bill was even passed — could not have been produced in accordance with a State (Hemp) Plan. As a result, Big Sky’s interstate shipment of hemp was not protected from state seizure by the 2018 Farm Bill. Using virtually identical reasoning, on February 19, 2019, the federal court also denied Big Sky’s separate motion for a preliminary injunction seeking return of the plant material.

Big Sky then appealed the district court’s second ruling to the United States Court of Appeals for the Ninth Circuit. At the same time, however, ISP also renewed a claim it had made before the district court – namely, that the federal court should have abstained from issuing any decision in the case because Big Sky could have raised its federal claims in the ongoing state forfeiture proceeding. This is called Younger abstention.

In its February 19 ruling, the district court had rejected the ISP’s abstention argument. But the Ninth Circuit disagreed. In a brief unpublished decision issued in September 2019, it found that the district court should have dismissed Big Sky’s challenge and not issued any substantive ruling in the case. Big Sky Scientific v. Bennetts, 776 Fed. Appx. (9th Cir.) (Sept. 4, 2019). The Ninth Circuit based its decision (in part) on “the assumption that . . . the Idaho District Court will proceed expeditiously with the in rem [forfeiture] action, including Big Sky’s challenge to Idaho’s interpretation of the . . . 2018 Farm Bill . . . .”

The Ninth Circuit’s ruling effectively ended the federal litigation over the seizure. This meant that Big Sky’s only hope would be to convince the state judge presiding over the forfeiture proceeding that the seizure of its cannabis plant material was preempted by the 2018 Farm Bill.

Which brings me to that state court forfeiture proceeding. . . .

2. The state court (correctly) upholds the seizure . . .

In the state forfeiture proceedings, Big Sky appears to have recycled the same basic arguments it made to the federal court – with no different result. Like the federal district court before it, the state court found that Big Sky’s shipment of cannabis plant material through Idaho was not protected by the 2018 Farm Bill (or the 2014 version). See Idaho State Police v. One White 2013 Freightliner(pdf of full decision). Indeed, the state court noted that it “finds persuasive and adopts the reasoning of” the federal court in its February 19, 2019 decision. One White 2013 Freightliner, p. 25. (The fact the Ninth Circuit vacated that opinion would not bar the Idaho court from adopting its reasoning.) It held that while the 2018 Farm Bill expressly preempts state laws barring the interstate transportation of hemp through a state, it does so only when said hemp is produced in accordance with a State Plan approved by the United States Secretary of Agriculture. The big problem for Big Sky is that the plant material it was transporting – even if it was hemp (which no one really disputed) – could not have been hemp produced in accordance with a State Plan. Why? All of the hemp in the truck was apparently grown in Oregon before any such State Plan had been approved – indeed, it had been grown even before the 2018 Farm Bill had even been passed.

I think the courts’ (both federal and state) reasoning on this point is sound. As I noted in my earlier post, the judgment may seem harsh, but it appears that Big Sky jumped the gun on trying to take advantage of 2018 Farm, and now it is paying the price.

3. . . . but also makes misinterprets the 2018 Farm Bill along the way.

The Idaho state court could have stopped there, but it didn’t. In fact, it wrote a 34 page opinion which, while reaching the correct result in this case, offers a fundamentally flawed interpretation of the 2018 Farm Bill. In particular, the court mistakenly declares that the 2018 Farm Bill applies only to cannabis sativa, and not to other (supposed) “species” of the cannabis plant, namely, cannabis indica and cannabis ruderalis.

I am not trying to pick on the state court here (it did reach the correct result after all), but since this flawed reading of the law could generate confusion about the 2018 Farm Bill (and perhaps federal marijuana law more generally), I feel the need to highlight and correct its errors here.

At the outset, the court notes that “botanists have disagreed for nearly 300 years about how many species of plant are in the genus Cannabis.” One White 2013 Freightliner, p. 11. “The taxonomical debate is an important one because various legislative bodies, like Congress in the 2014 Farm Bill . . . continue to draw a legal distinction between all plants in the genus Cannabis and plants of the species Cannabis sativa L.” One White 2013 Freightliner, p. 14.

For the latter proposition, the court rests entirely on the statutory definition of “industrial hemp” found in the 2014 and 2018 Farm Bills – a definition the court insists is “species specific.” One White 2013 Freightliner, p. 14. Here is the definition the court references:

‘The term “industrial hemp” means the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.’

7 USC § 5940 (emphasis added). The court reasons that Congress must have “recognized the existence of at least one other species of plant in the genus Cannabis”, because “otherwise Congress would not have had to specify hemp as meaning C. sativa L plants. Congress could have simply said ‘plants within the genus Cannabis.’ Congress clearly intended only to include plants of the specific species C. sativa L.” One White 2013 Freightliner, p. 15.

Why does this all matter? Well, according to the court, “Under current federal law, C. indica and C. ruderalis plants are controlled substances . . . , even if the . . . THC concentrations are below 0.3 percent. The definition of “industrial hemp” is species specific.” One White 2013 Freightliner, p. 14.

Thus, to prevail on its preemption claim, Big Sky would have to prove not just that the cannabis plant material it was transporting had a THC concentration below .3%, but also that the material was comprised entirely of the species cannabis sativa, and not cannabis indica or cannabis ruderalis. The court suggested that the Farm Bills’ definition of hemp

“leave[s] this court with a potential issue of fact to resolve. Because the 2018 Farm Bill and the 2014 Farm Bill are specific to plants of the species C. sativa L, Big Sky’s argument about federal preemption fails as to plants, or parts thereof, from the species C. indica or C. ruderalis.”

One White 2013 Freightliner, p. 16.

In sum, according to the Idaho court, Big Sky would need to prove that the plant material seized by ISP:

  1. Consisted entirely of cannabis sativa, and
  2. Contained less than .3% THC by dry weight, and
  3. Was produced in accord with a State Plan approved by the Secretary of Agriculture

I think the state court erred in interpreting the Farm Bills to apply only to one species of cannabis (i.e., cannabis sativa), for two reasons.

First, federal law doesn’t make distinctions among cannabis species. To be sure, the language of the 2014 and 2018 Farm Bills references “cannabis sativa.” But so does the Controlled Substances Act of 1970 (i.e., the statute the Farm Bills modify). 21 U.S.C Section 802(16) defines “marihuana” as “the plant Cannabis sativa L. . . .” Yet, as I discuss in my book (pages 27-29), every court that has interpreted the statute has squarely held that it applies to all cannabis plants, and not just cannabis sativa plants. In other words, every court that has previously addressed the issue has held that Congress did not mean to distinguish among different cannabis species when it employed the term “Cannabis sativa L.” – rather, it just employed that term as a catch all for all cannabis plants.

Many of these cases were decided back in the 1970s, when the ink was still drying on the CSA. Defendants charged with cultivating / distributing marijuana would claim that federal prosecutors had to prove that the cannabis they cultivated / distributed was cannabis sativa, and not cannabis ruderalis or indica (both of which, they claimed, were beyond the definition of “marihuana” under the literal language of the federal law). The federal courts uniformly rejected this argument, reasoning (inter alia) that “Congress adopted ‘cannabis sativa L.’ believing it to be the term scientists used to embrace all marihuana-producing cannabis” and that there was there no practical reason for Congress to distinguish among (purported) species of cannabis because all have “the same properties” (namely, the ability to generate large amounts of THC). Book, page 29 (discussing cases).

No doubt Congress was aware of the precedent interpreting its definition to cover all cannabis plants, regardless of (possible) species differentiation. It thus appears that it sought to carry forward  that (expansive) definition when it used identical language in the Farm Bills (or at least, that’s a very reasonable assumption).

The Idaho court, unfortunately, doesn’t notice that the Farm Bills start with the same definition of “marihuana” used in the CSA. (Had the Idaho court recognized the textual symmetry, it probably would not have made its interpretative mistake; after all, the court repeatedly acknowledges that cannabis ruderalis and cannabis indica are both considered “marijuana” under the CSA.) Neither does the court bother to consult any of the (many) federal cases that squarely reject its interpretation of the shared statutory language. (Instead, the court consults with sources like Herodontus and the Oxford English Dictionary.)

It doesn’t help that the court’s misguided discussion of the Farm Bills’ definition of industrial hemp was entirely unnecessary (my second problem with its holding). As noted above, the court could have denied Big Sky’s challenge just by finding that the material it was transporting through Idaho was not produced in accordance with a State Plan, as required by the 2018 Farm Bill. It did not need to decide whether (or not) the material actually met the definition of “industrial hemp,” and whether (or not) that term includes cannabis ruderalis and indica. (Indeed, in the state forfeiture proceeding, it appears that no one was questioning whether Big Sky’s plant material met the definition of “industrial hemp.” The Idaho court itself acknowledged that “ISP has implicitly conceded that the plant and plant parts it seized were entirely low-THC C. sativa.” One White 2013 Freightliner, p. 21.)

The harm caused by the Idaho court’s mistaken interpretation of the Farm Bills may prove small, but I worry that it will cause some farmers / shippers / processors to believe they need to ascertain the species of the cannabis plants they are cultivating / handling (and not just the THC content of those plants). I’m not even sure how that could be done – after all, botanists disagree over whether there really even are different species of cannabis plants in the first instance. And the Idaho court complained that for all the testimony it received in the case, it still “could not determine the species of each and every plant and plant part seized.” One White 2013 Freightliner, p. 19.

“This court has little or no evidence as to what species of plants were even grown or tested. The testimony of the various chemists and [the farmer] who grew the plants, uses very generic or conclusory language. The reports from the various chemists who examined the material seized by the ISP all refer to it as “plant material” 0r “hemp biomass.” [The farmer] calls his crop “industrial hemp.” But neither the chemists nor [the farmer] explain what they mean by the word “hemp” or the phrase “industrial hemp” and, if by saying “hemp” they mean “plants of the species C. sativa, ” they fail to explain how they reached the opinion that the plant material seized by ISP (or the crops [the farmer] grew) were of that species and not another.”

One White 2013 Freightliner, p. 19.

Ultimately, asking farmers / shippers / processors to prove that the plant material they’re cultivating / handling is cannabis sativa is likely to add to the cost of complying with the Farm Bills – and it’s an entirely unnecessary expense.

4. A few last thoughts and observations

• The Idaho court did nicely identify some of the complexities posed by the Farm Bills’ definition of industrial hemp (even while it needlessly added to those complexities). For example, noted some of the legal questions raised by the requirement that plant material not exceed .3% THC:

“[I]s it the dry weight of the entire plant that is to be used to determine THC concentration? Or just the weight of the part at issue? What if you have the part and not the rest of the plant? Under a reasonable reading of [the 2018 Farm Bill], one could take a C. sativa plant that has a . . . THC concentration of less than 0.3 percent by dry weight, cut it in half mid-stalk, and wind up with 2 plant parts—the top with the leaves and flowers and the bottom with the stalk and the roots. Theoretically once you cut it in half, if the . . . THC is largely concentrated in the leaves and flower buds, you could end up with one part that is now marijuana (the top half) and one part that is still hemp (the bottom) under the federal definitions. . . .”

One White 2013 Freightliner, p. 18. But those are questions for another day.

• At first glance, it might seem strange that the ISP would have renewed its abstention claim after having won in the federal district court (see background above). After all, abstention effectively nullified its federal district court victory from February 2019. But I can imagine at least two reasons for renewing the abstention claim: (1) Abstention simplifies the litigation. Abstention would consolidate all of the litigation over the seizure into one state court forfeiture proceeding. This would spare the ISP the extra time and effort needed to (re)litigate identical claims in two separate courts (Idaho state court and federal court). (2) State court is probably a more favorable forum (for ISP) than is the Ninth Circuit. While it’s true that the ISP won before the federal district court, there is no guarantee the Ninth Circuit would uphold the federal district court’s ruling on the merits, if it had to decide the issue. To be sure, I doubt the Ninth Circuit would have invalidated the seizure – the 2018 Farm Bill is pretty clear. But the Ninth Circuit has issued several pro-marijuana rulings in the past. For example, in Gonzales v. Raich, it found that the application of the federal marijuana ban to the intrastate cultivation of marijuana exceeded the scope of Congress’s Commerce Clause authority (as discussed in my book, pages 253-265, the Supreme Court overturned that decision). Likewise, in Conant v. Walters, the Ninth Circuit held that the federal Drug Enforcement Administration could not punish physicians merely for “recommending” marijuana to their patients – the court held that such a recommendation constitutes First Amendment protected speech (see pages 602-610). To play it safe, then, ISP may have wanted to keep this case in state court, and not risk the possibility of the Ninth Circuit interpreting the Farm Bill in a way that would invalidate its seizure of the plant material.

• Originally the forfeiture case was brought against both the truck that was used to transport the hemp and the hemp itself. As I discuss in the book, many states provide for civil forfeiture of items used in connection with the commission of a drug trafficking offense—and forfeiture cases take their names from the property at issue (see pages 379-396). But at the end of its decision, the Idaho court notes that the ISP had dismissed its claims against the other property in the forfeiture proceedings, including, apparently, the truck for which the case was named (One White 2013 Freightliner Commercial Vehicle, VIN # 1FUJGKDR4DSBU5154, with all appurtenances, (Oregon Registration: YAIT108) . . . .

• It appears that the driver of the truck – who was originally charged with a marijuana trafficking offense – pled guilty to a lesser offense: failure to provide supporting documents in a driver’s possession. He was sentenced to 180 days in jail (although he was released for time served – five days) and was fined $2,360. See Katy Moeller, Truck was returned, driver took plea deal. Now Idaho courts will decide hemp case, Idaho Statesman, Oct 1, 2019.

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