Source: POLITICO'S MORNING AGRICULTURE, 8/23/19

In January, a truck driver transporting hemp grown in Oregon to be processed in Colorado was stopped for a random inspection at a weigh station in Boise, Idaho. Unable to immediately distinguish between hemp and marijuna, authorities charged the driver with trafficking marijuna, a felony charge that can carry a minimum of five years in prison.

That arrest set off a debate about state and federal authority, and it highlighted one of several legal gray areas following hemp legalization in the 2018 farm bill.

Authorities seized the entire truckload — approximately 7,000 pounds of hemp estimated to be worth $1.3 million. Lawyers representing the hemp processing company, Big Sky Scientific, are fighting to get the confiscated crop released. A federal district court judge in February denied their request for a preliminary injunction to get the hemp returned. The U.S. Court of Appeals for the 9th Circuit will hear arguments in the case on Wednesday.

Hemp and marijuana look identical, but industrial hemp contains no more than 0.3 percent THC, the psychoactive chemical found in cannabis. Testing showed the truckload of hemp fell below that threshold.

Elijah Watkins, the lead attorney representing Big Sky, told MA this month the case will determine if hemp can be transported across the country, either by truck, plane or mail. He said it's a first-in-the-nation appellate case that will reverberate throughout the industry.

"The stakes are obviously for Big Sky to get its products back, but for every company like Big Sky, can they do it? Do they have a viable business to be shipping across the country?"

The state's defense: Hemp remains illegal in Idaho, so authorities had the right to seize the truckload, county prosecutors argued in legal briefs. Idaho also has the ability to prohibit transportation of hemp within the state because the product must first be lawfully produced, which can't happen because USDA hasn't approved any state plans for regulating hemp, according to prosecutors. The Idaho attorney general's office declined to comment on pending litigation.

USDA guidance: In an attempt to clear up confusion on hemp transportation, the department in May released a legal opinion that states will be forbidden from preventing the transportation or shipment of hemp after USDA crafts its guidelines for the crop and approves state plans. Those guidelines are expected to be released this fall.