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USDA legal opinion says states can’t block hemp shipments. But Idaho officials disagree.

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Idaho officials have said shipment of hemp through the state won’t be legal until federally approved regulatory plans are in place, but the United States Department of Agriculture doesn’t agree.

In a legal opinion issued Tuesday, USDA general counsel Stephen Vaden said states and Native American tribes may not prohibit the interstate shipment of hemp that is lawfully produced under the Agricultural Act of 2014, also known as the 2014 farm bill.

The federal farm bill that passed last December legalized industrial hemp nationwide.

The Ada County Prosecutor’s Office, which has charged three out-of-state truckers with felonies for hauling hemp through Idaho, declined to comment Wednesday afternoon.

“Our office is aware of the USDA’s memorandum,” said Bethany Calley, a spokeswoman, via email. “We are limited in our ability to comment on pending litigation and are therefore unable to provide any further response regarding your inquiry at this time.”

The Idaho Attorney General’s Office also declined to comment because the office is representing Idaho State Police in one of the cases.

Two state lawmakers — Rep. Ilana Rubel, D-Boise, and Rep. Dorothy Moon, R-Stanley — have called on prosecutors to drop the charges, and they delivered a petition to Ada County prosecutors that had more than 13,000 signatures. The online petition has grown to more than 18,700 signatures.

The Ada County Prosecutor’s Office issued a written response to receiving the petition, saying in part:

“The 2018 Farm Bill’s intent of allowing the interstate transportation of hemp will only be realized once there is a regulatory system in place. As of this date, that system has not been developed in any state — including Idaho — and is therefore not currently in effect. As a consequence, hemp is not legal in Idaho.“

Additionally, they said they are working to establish a “legal framework to provide a solution.”

Twin Falls County Prosecutor Grant Loebs, a spokesman for the Idaho Prosecuting Attorneys Association, said via email Thursday that the USDA opinion is just that — an opinion — and not a court decision.

“As such, it has no weight,” he said.

Loebs said changes in prosecutions in Idaho will come after USDA publishes regulations implementing the new hemp production provisions of the 2018 farm bill.

“Clearly, Idaho, and every other state, will need to provide for the interstate transportation of this commodity,” Loebs said. “So the interstate transportation prosecutions will certainly be affected. Idaho can still control whether it is legal to produce, sell and traffic this product.”

On page 10 of the USDA legal opinion, Vaden took issue with a 9th Circuit judge’s decision to deny a Colorado company’s request for a preliminary injunction to get its truckload of hemp back from Idaho State Police before it degrades and molds. A Big Sky Scientific official previously told the Statesman that the hemp was to be used to make a CBD powder that would have been valued at $1.3 million.

“USDA is not a party in the Big Sky case, and this office does not concur with the reasoning of the magistrate regarding the shipment of hemp lawfully produced under the 2014 Farm Bill,” Vaden wrote.

But under Idaho law, hemp is equivalent to marijuana, which is a controlled substance. Both contain the psychoactive drug THC, though hemp has only miniscule amounts. Anything that tests positive for THC is illegal in Idaho.

Idaho lawmakers considered legalizing hemp this year but that proposal fell apart at the end of the session. Even transporting hemp through Idaho remains illegal.

The 16-page USDA opinion is available online.

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