BOISE, Idaho — Idaho State Police recently made what it called it's largest bust of marijuana in state history.
Only it might not be marijuana.
And if it turns out to be hemp which the federal government recognizes as legal, the state could have some serious egg on it's face, not to mention a lot of work to do ensuring that mistake doesn't happen again.
It looks like pot, it smells like pot, it even has a tiny amount of THC.
But federal law says hemp is not pot, and is legal.
But Idaho says not so fast.
"The new federal law which came into effect on dec 20th requires additional regulation before it becomes fully operational." says former Idaho Attorney General David Leroy.
So, former Attorney General for Idaho David Leroy says until then, Idaho can continue to enforce its law banning hemp.
And now it's the attorney for the hemp company that had it's load confiscated saying, "not so fast".
"They can regulate hemp in the borders of their own state, but they can't prohibit interstate commerce from taking place." says Elijah Watkins, with Stoel Rives LLP. He is suing the Idaho State Police because he says allowing states to limit interstate commerce can lead to chaos.
"Idaho could call up uUah and Arizona and get together and say lets prohibit alcohol in our state and sieze any truck from Budweiser and say not let it go through. That effectively would shut down the western seaboard," says Watkins.
Leroy says the lawsuit has nationwide implications, "This is a landmark case."
A case he says is, "Exactly the right remedy to speed along a decision about which sovereign jurisdiction is correct."
But even Leroy admits that federal law almost certainly "...will trump state law."
If the confiscated bags contain only hemp, Idaho could face damages, especially if the product, which is perishable, goes bad.
Not only that, it will inevitably have to figure out how to test hemp in the future to prevent this from happening again.
Hemp was legalized when the 2018 Farm Bill went into effect in December.
But it seems Idaho was caught off guard.
"Out of a lot of states in the union, Idaho is one of only a few states that doesn't have a program in line with the 2018 Farm Bill," says Watkins.
Hemp can have no more than point-3 percent THC.
But Watkins says hemp companies generally make sure their entire plants are well below the limit to avoid losing expensive crops.
