Brief of appellant Big Sky Scientific LLC

INTRODUCTION

The Agriculture Improvement Act of 2018, Pub. L. No. 115-334 (2018 Farm Bill), legalizes industrial hemp on a federal level. After the law’s enactment, Big Sky Scientific LLC (Big Sky) purchased industrial hemp that was grown legally under Oregon’s hemp pilot program. Big Sky hired a commercial trucker to haul the hemp to Colorado, where it could be legally processed under Colorado law. While the hemp was in transit through Idaho, the Idaho State Police seized the hemp because Idaho’s Controlled Substances Act does not distinguish between regulated hemp transported in interstate commerce from a dime-bag of marijuana sold anywhere in Idaho. Ada County and its Prosecuting Attorney Jan Bennetts (collectively, Ada County) charged the driver with a felony.

This appeal asks whether the State of Idaho has the authority under its Controlled Substances Act to seize legally grown and purchased hemp that was in Idaho only because it was being transported through the state in interstate commerce. The answer is no. Congress has the power to regulate interstate commerce and preempt state laws having a substantial effect on interstate commerce. It did so with the 2018 Farm Bill. The 2018 Farm Bill classifies hemp as an agricultural commodity, allows its commercial production in the United States, and extends existing state pilot programs, such as Oregon’s, established under the Agricultural Act of 2014, Pub. L. No. 113-79 (2014 Farm Bill).

Congress’ enactment of the 2018 Farm Bill preempts the Idaho State Police’s and Ada County’s seizure of Big Sky’s hemp. There is no dispute that the seized hemp was legally produced and is not marijuana under federal law. There also is no dispute that the hemp was in Idaho only because the interstate connecting Oregon and Colorado runs through Idaho. But when Big Sky sought a preliminary injunction barring enforcement of the Idaho Controlled Substances Act to the extent it prohibits the interstate transport of hemp through Idaho and to secure the return of the hemp (which is perishable), the district court declined.

The district court abused its discretion in refusing to grant Big Sky a preliminary injunction. In Section 10114(a) of the 2018 Farm Bill, Congress admonished, in a rule of construction, that “[n]othing in this title or an amendment made by this title prohibits the interstate commerce of hemp … or hemp products.” The district court, however, found there was something in the title that does—a prohibition, set forth in Section 10114(b), that the district court found only affords protection to the interstate commerce of hemp if it is produced in accordance with Subtitle G of the Agricultural Marketing Act of 1946 and under regulations the federal government has not yet issued.

The district court failed to harmonize the two subsections of Section 10114 and failed to derive their meaning from the context of the 2018 Farm Bill and thus failed to recognize that Congress preempted states from interfering with the interstate commerce of hemp. Reading Section 10114 plainly and in the context of the 2018 Farm Bill shows Congress allowed hemp to be transported across state lines, local law notwithstanding. And even if the district court was right that states can bar the transportation of hemp not produced under Subtitle G, Big Sky’s hemp was produced in accordance with Subtitle G, because Subtitle G permits the continued production of hemp under the 2014 Farm Bill.

It follows that Big Sky is likely to prevail on the merits and has suffered irreparable harm. Idaho’s seizure of Big Sky’s hemp, if unchecked, will impair Big Sky’s business of purchasing and processing hemp, as well as the production, marketing, and transportation of hemp generally. Big Sky will suffer irreparable harm until Idaho is enjoined because it is losing competitive standing in its industry. The Court should reverse the district court and direct it to preliminarily enjoin the Idaho State Police and Ada County from prohibiting the interstate commerce of hemp through Idaho and from continuing to hold Big Sky’s hemp.

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