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Big Sky Scientific LLC v. Idaho State Police

United States District Court, D. Idaho

February 2, 2019

BIG SKY SCIENTIFIC LLC, Plaintiff,
v.
IDAHO STATE POLICE, ADA COUNTY, JAN M. BENNETTS, in her official capacity as Ada County Prosecuting Attorney, Defendants,

          MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DOCKET NO. 2) PLAINTIFF'S MOTION TO FILE OVERLENGTH BRIEF (DOCKET NO. 3)

          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court is Plaintiff Big Sky Scientific LLC's (1) Emergency Motion for Temporary Restraining Order and Preliminary Injunction (Dkt. 2), and (2) Motion to File Overlength Brief (Dkt. 3). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         I. GENERAL BACKGROUND[1]

         A. The 2014 Farm Bill

         1. On February 7, 2014, President Barack Obama signed into law the Agricultural Act of 2014, Pub. L. No. 113-79 (the “2014 Farm Bill”). Though it did not remove industrial hemp[2] from federal controlled substance schedules, the 2014 Farm Bill nonetheless provided that, “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp, ” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are allowed under the relevant state's laws. See 7 U.S.C. § 5940(a).

         2. The so-called “industrial hemp” was defined in the 2014 Farm Bill as the plant Cannabis sativa L., or any part of such plant, “with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Id. at § 5940(b); see also Shore Decl., ¶ 3 (Dkt. 2-11) (“Delta-9 tetrahydrocannabinol (“Δ-9 THC”) is the principal psychoactive constituent of cannabis and the ‘high' experienced by recreational users increases based upon the level of Δ-9 THC. Because industrial hemp has a Δ-9 THC percentage of 0.3 percent or less on a dry weight basis, it has virtually no psychotropic effects and is not used recreationally.”).

         3. In 2016, the Oregon legislature passed HB 4060 to establish an industrial hemp program allowing for the cultivation and regulation of industrial hemp in Oregon, complying with the 2014 Farm Bill's requirements. See, e.g., Or. Rev. Stat. § 571.333(1) (establishing framework “for the purpose of developing standards for investigating and testing an industrial hemp crop to ensure that the crop contains an average tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry weight basis.”).

         B. The 2018 Farm Bill

         4. On December 20, 2018, President Donald Trump signed into law the Agriculture Improvement Act of 108, Pub. L. 115-334 (the “2018 Farm Bill”), which expanded the definition of “industrial hemp” beyond the 2014 Farm Bill to include not only “the plant Cannabis sativa L. and any part of that plant, ” but also “the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Compare 2018 Farm Bill § 10113, with 2014 Farm Bill § 7606.

         5. The 2018 Farm Bill distinguished industrial hemp from marijuana, added industrial hemp to the list of agriculture commodities, and removed industrial hemp from federal controlled substance schedules.

         6. Under the 2018 Farm Bill, states and Indian tribes may choose to regulate industrial hemp on their own, and the new legislation expressly says that “No Preemption” is intended of any law of a state or Indian tribe that “regulates the production of hemp” and “is more stringent” than federal law. 2018 Farm Bill § 10113. In other words, though industrial hemp is no longer a controlled substance under federal law, states and tribes may declare it to be a controlled substance under state or tribal law. Idaho does not distinguish industrial hemp from marijuana; both are controlled substances under Idaho law.

         7. However, relevant here, the 2018 Farm Bill addressed industrial hemp in interstate commerce, stating:

(a) RULE OF CONTRUCTION. - Nothing in this title or an amendment made by this title prohibits the interstate commerce of hemp (as defined in section 297A of the Agricultural Marketing Act of 1946 (as added by section 10113)) or hemp products.
(b) TRANSPORTATION OF HEMP AND HEMP PRODUCTS. - No. state or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.

2018 Farm Bill § 10114.

         C. Plaintiff Big Sky Scientific LLC

         8. Plaintiff Big Sky Scientific LLC (“Big Sky”) was incorporated on December 17, 2018, purportedly to be among the first companies to market in what it believed to be the new and evolving ...


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