Hogan Lovells partners Neal Katyal and Sean Marotta have joined the legal team of a Colorado company trying to recover a tractor-trailer full of industrial hemp that Idaho police seized as contraband in January.
Big Sky Scientific, which is also represented by Stoel Rives attorneys, argued in a 306-page brief filed in the U.S. Court of Appeals for the Ninth Circuit Wednesday that a federal court in Idaho erred last month when it refused to issue a preliminary injunction that would have returned the 6,700 pound shipment.
The 2018 Farm Bill, which removed hemp from the Controlled Substances Act, specifically allows the interstate shipping of regulated product, Stoel Rives partner Christopher Pooser said.
“Congress’ enactment of the 2018 Farm Bill preempts the Idaho State Police’s and Ada County’s seizure of Big Sky’s hemp,” Pooser wrote. “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.”
Katyal, who is a former acting U.S. solicitor general, and Marotta entered the case for the first time Wednesday, according to filings.
The case appears to be one of the first legal tests of the farm bill’s reach in legalizing hemp. CBD, or cannabidiol, is a nonpsychoactive derivative of hemp projected to generate $16 billion in sales in the U.S. by 2025. By definition, hemp contains no more than 0.3 percent of tetrahydrocannabinol, or THC, the cannabinoid that causes a high in higher concentrations in marijuana.
Idaho state police stopped the Big Sky shipment, heading from its production site in Oregon to a processing facility in Colorado, outside of Boise on Jan. 24. Idaho deems any product that tests positive for any amount of tetrahydrocannabinol, THC, to be illegal marijuana. Authorities seized the trailer full of hemp and arrested the commercial truck driver on a charge of trafficking marijuana.
Big Sky sued Idaho state police, Ada County and Jan Bennetts, the Ada County prosecuting attorney in the U.S. District Court for the District of Idaho. Chief U.S. Magistrate Judge Ronald Bush last month refused to immediately order the hemp’s return, finding that the shipment could not be a legal agricultural commodity because it was grown before the federal government or the state of Oregon enacted a regulatory plan for hemp.
Big Sky said in its appeal that the hemp was legally grown under an Oregon pilot program. Stoel Rives partner Elijah Watkins said the seized cargo has a potential value of $1 million.