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Hemp production for CBD is a new but growing ag sector. Jenny Schlecht / Forum News Service

USDA said states can't block hemp drivers. So what happened in South Dakota?

ST. PAUL — A Colorado driver hauling nearly 300 pounds of hemp to Minnesota was pulled over last month in South Dakota despite an order from the U.S. Department of Agriculture not to block hemp shipments.

South Dakota troopers on July 16 pulled over Robert Herzberg, 41, as he transported hemp to Minneapolis, a Minnesota hemp trade group said and South Dakota Public Safety Secretary Craig Price confirmed to lawmakers on Monday, Aug. 19.

Herzberg was pulled over and charged with possession of marijuana, possession with intent to distribute, unauthorized ingestion of a controlled substance and ingesting a substance, according to an amended complaint filed Tuesday in Jackson County. A trooper in his report of the arrest said he smelled marijuana in the vehicle when he pulled Herzberg over for speeding and upon inspecting the rental car found two white grain bags full of a "green leafy substance" that appeared to be raw marijuana.

Highway Trooper Benjamin Filipiak said he also noticed what appeared to be marijuana in the car's console near a half-smoked cigarette. Troopers in their arrest reports also noted that Herzberg appeared nervous but kept explaining that he was transporting hemp, "not drug marijuana."

The hemp tested positive for THC, the component present at varying levels in hemp and marijuana. Possession of marijuana and possession of marijuana with intent to distribute are both Class 3 felonies in South Dakota.

Herzberg could face 15 years in prison, a $30,000 fine or both on each charge. But USDA guidelines in May indicated drivers transporting hemp — even through states that don't permit growing it— shouldn't be subject to charges.

A urine screen indicated that Herzberg had THC and cocaine in his system at the time of his arrest.

"This person who was driving faces very severe criminal penalties if they’re prosecuted under the existing marijuana laws, and that would be sort of a personal tragedy on that level,” said Joe Radinovich, executive director of the Minnesota Hemp Association. “My expectation is that when South Dakota can move forward with testing this material that they’ll find out that it is legally grown and certified hemp and that they’ll drop those criminal charges.”

Under the 2018 Farm Bill, hemp was legalized at the federal level and terms were set for its growth, transport and sale. Hemp and cannabis are in the same family, but industrial hemp plants can't contain more than 0.3% THC, the ingredient that causes psychological effects in marijuana, under federal law.

And in May, the USDA issued a memo clarifying that states, Native American tribes and other sovereign nations have the right to bypass legalizing hemp, but they can't block the transportation of hemp through a state or tribal territory.

Public Safety Secretary Price on Monday told state lawmakers that a field-test marked the bud positive for marijuana and for THC, but police have had trouble finding a lab to test the 292 pounds of hemp for THC content.

Meanwhile, the loss to the Minnesota-based extractor company expecting the hemp exceeded $36,000 for the seized buds and legal fees, Radinovich said. The estimated value of that hemp after processing was $100,000.

“The member involved here did nothing wrong,” Radinovich said. Despite that, the association told members to bypass South Dakota for the time being, he said.

South Dakota Highway Patrol Colonel Rick Miller told lawmakers on Monday that officers didn't feel they got adequate information from the driver.

“There’s obviously a lot of questions that were asked, a lot of questions that could not be answered, and so, therefore, through good investigation, we determined that that was illegal,” Miller said. Jackson County State's Attorney Daniel Van Gorp on Tuesday said he couldn't comment on the case as the investigation is ongoing.

Forty-seven states have approved the growth of industrial hemp, according to the National Conference of State Legislatures. But South Dakota remains among the few that haven't. Gov. Kristi Noem earlier this year vetoed a proposal to legalize industrial hemp.

And on Monday, ahead of a legislative summer study hearing on legalizing industrial hemp, the Republican governor and members of her Cabinet still had hundreds of questions about the proposal.

"There are too many questions surrounding this issue that should cause us to just pause, wait for further guidance and learn from the experience of other states," Price said. "I certainly don't want to do anything that would further increase the threat to our next generation of kids."

Without a roadside test to determine whether plants contained more or less than 0.3% THC, an officer would have a hard time assessing whether drivers were honest about the cannabis or hemp they were transporting, Price said.

Lawmakers on the summer study and farmers, meanwhile, said the South Dakota likely would be left behind if it didn't set a strategy to move forward with industrial hemp.