Litigation Update: Who Decides No matter if You Can Ship Hemp Via Idaho?


Normal readers know that we are in the midst of presenting a 50-state series analyzing how every single state treats hemp-derived cannabidiol (“Hemp CBD”). Not too long ago we covered Idaho, which we neatly summarized as “probably the worst state in the nation to get caught with hemp.” The write-up explains why this is so in detail.  Among the factors is that final winter the Idaho State Police seized a shipment of 13,000 pounds of hemp which was becoming transported across Idaho from Oregon to Colorado. (See right here.) The case has received considerable consideration from the press and the hemp market. Certainly, the American Trade Association of Cannabis and Hemp filed amicus briefs in each the federal district court and the Ninth Circuit in help of the owner of the hemp.

The Ninth Circuit sends hemp owner to Idaho state court on the basis of the Younger abstention doctrine.

The seizure led to a federal lawsuit by the owner of the seized load. Huge Sky Scientific, LLC v. Jan M. Bennetts, No. 1:19-cv-00040-REB (D. Idaho).  Big Sky sought a declaration that (i) the cargo is industrial hemp beneath provisions of the 2018 Farm Bill, (ii) hemp is not a controlled substance beneath federal law, and (iii) Idaho can’t interfere with the interstate transportation of hemp.

Huge Sky also promptly moved for a preliminary injunction asking the federal court to compel the Idaho State Police (“ISP”) to return the hemp. Huge Sky contended the cargo was deteriorating and losing its worth as it sat in ISP’s possession. Meanwhile, ISP filed a state-court complaint in rem for forfeiture of the hemp beneath Idaho state law.

In contemplating the motion, the federal district court directed the parties to address “whether the Court has jurisdictional authority to compel the relinquishment of house seized in connection with a state criminal case.” ISP drew upon the Younger abstention doctrine to argue the federal court lacked jurisdiction and ought to abstain from working out jurisdiction more than Huge Sky’s request for equitable relief.

The federal court denied the motion for a preliminary injunction and ruled that it have to have not determine the abstention query. Huge Sky appealed the denial to the Ninth Circuit, wherein ISP argued the district court abused its discretion by not abstaining pursuant to Younger.

In a quick, unpublished opinion issued on September four, 2019, the Ninth Circuit agreed with ISP and reversed the district court’s selection not to apply Younger abstention. The selection was primarily based, in component, on ISP’s representation at oral argument that (i) Idaho will promptly move to lift the remain in the in rem forfeiture action, and (ii) the assumption that the Idaho state court would proceed expeditiously with the in rem action, such as Huge Sky’s challenge to Idaho’s interpretation of the 2018 Farm Bill.

In plain terms: the Ninth Circuit ruled that the federal district court ought to refrain from working out jurisdiction more than Huge Sky’s case mainly because carrying out so may well interfere with the ongoing proceedings in Idaho state court. (Really feel cost-free to e-mail me for a copy of the opinion.)

What is Younger abstention?

The Younger abstention doctrine is named immediately after the Supreme Court’s 1971 selection in Younger v. Harris which held that federal courts may well not enjoin state court criminal proceedings. At heart the Younger abstention doctrine arises from our method of federalism and its separation of powers. States are independent sovereigns (as are Indian tribes in numerous respects) and most abstention doctrines proceed from this understanding. Given that 1971, federal courts have applied the principles of Younger to proceedings far beyond the criminal context. Usually speaking, the doctrine operates to protect against federal courts from enjoining pending state court proceedings.

The doctrine is controversial in quite a few respects for factors we will not get into right here. (See Federal Jurisdiction by Erwin Chemerinsky for a thorough evaluation). Other abstention doctrines involve Colorado River abstention – which is concerned with avoiding duplicative litigation the Rooker-Feldman doctrine – which issues federal court overview of state court choices Pullman abstention – which issues refraining from deciding concerns primarily based on unclear state law and Burford abstention – which issues deferring overview of complicated state administrative procedures.

For now, I’ll briefly clarify the components of Younger abstention and turn to the implications of the Ninth Circuit’s selection. As the Court explained, “Younger abstention is suitable when (1) there is an ongoing state judicial proceeding (two) the proceeding implicates significant state interests (three) there is an sufficient chance in the state proceedings to raise constitutional challenges and (four) the requested relief seeks to enjoin or has the sensible impact of enjoining the ongoing state judicial proceeding.”

In Huge Sky, the Ninth Circuit identified these components met mainly because of the pending in rem forfeiture proceeding in Idaho state court in which Huge Sky may well raise its federal claims. Though the state courts had stayed that action, ISP’s guarantee to move to lift that remain, and the “assumption” the state court would proceed to resolve that action expeditiously and permit Huge Sky to raise its constitutional challenges led the Ninth Circuit to conclude Younger abstention was suitable.

What are the implications of the Ninth Circuit’s ruling in Huge Sky for shipping HempCBD across state lines?

The Ninth Circuit’s selection has quite a few quick consequences relevant to any one operating in the HempCBD marketplace:

1)            Huge Sky (and other individuals) who have HempCBD shipments seized in Idaho may well ending up winding their way by way of state court and the state court appellate method (this is much less than best)

two)            Other states that take a dim view of hemp (we are hunting at you, South Dakota) may well see this as a template for seizing HempCBD shipments and maintaining connected proceedings out of federal court (even though South Dakota is in the Eighth Circuit so not bound to stick to the Ninth)

three)            Trucking and shipping corporations may well decline to present HempCBD shipping solutions mainly because of the possible of seizure

four)            The danger and expenses of shipping HempCBD ought to be addressed in your contracts – as we have mentioned ahead of – and you ought to think about spelling shipping routes to lessen the danger of seizure

five)            Make sure that your HempCBD shipments and shippers have the suitable manifests and other chain-of-custody documents and

six)            Ultimately, if a single of your HempCBD shipments is seized by law enforcement, act promptly with your litigation attorneys to commence a federal court action and be ready to make sophisticated jurisdictional arguments.

For now, it may well be most effective to remain away from Idaho.


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