• Tag Archives marijuana
  • Jackley Loses Flandreau Pot Case; Hagen Charges Prosecution Was Political

    Perhaps swayed by the same weaknesses I noticed, a Moody County jury today found Colorado entrepreneur Eric Hagen not guilty of anything Attorney General Marty Jackley accused him of in his interactions with the Flandreau Santee Sioux Tribe and their aborted marijuana resort. Hagen says Jackley is guilty of using the courts for political purposes:

    Eric Hagen, the president of Monarch America, said following the verdict that South Dakota Attorney General Marty Jackley ruined his company with a politically motivated prosecution that he had no jurisdiction to pursue.

    “He tanked our company by spreading lies and rumors,” Hagen said. “It was 100 percent politically motivated. This was simply a media ploy for Jackley because he’s running for governor in 2018” [Jonathan Ellis, “Eric Hagen Found Not Guilty in Flandreau Marijuana Trial,” that Sioux Falls paper, 2017.05.24].

    Boy, if this prosecution was a media ploy, it just backfired. After squeezing a plea deal out of Hagen’s business partner, Jackley still couldn’t put together a winning case.



  • Prosecution Faltering in Hagen Marijuana Trial

    The state’s trial of marijuana entrepreneur Eric Hagen for his involvement in the aborted Flandreau Santee Sioux Tribe’s pot palace completed its second day Monday in Flandreau. The prosecution shows a couple signs of faltering.

    First, contrary to my advice, the state actually called disgraced former legislator Mathew Wollmann to the stand to testify. Putting on the stand a twenty-something who lied on camera about his own unethical activity and came clean only when told the press had evidence of his intern-boinking doesn’t strengthen one’s case.

    Second, defense attorney Mike Butler seems to be doing a fair job of arguing that the marijuana was owned and controlled by the Flandreau tribe, not by Hagen. Butler is also arguing that charging Hagen with “conspiracy” doesn’t make sense when Hagen was being transparent with state and federal law enforcement about his work for the tribe.

    Third, the state’s star witness, Eric Hagen’s business partner Jonathan Hunt, said that his plea deal was just “a natural risk assessment” and that neither he nor Hagen is guilty:

    And while Hunt detailed Hagen’s involvement and provided inside information, his testimony was far from the smoking gun the prosecution was looking for. In fact, once on the stand Hunt categorically denied his own and Hagen’s guilt on all charges.

    After months of speculation about the details of his deal with the state prosecutor, Hunt explained on Monday that he pleaded to the lesser charges only due to a lack of “financial wherewithal” to mount a legal defense.

    As part of his direct examination by the prosecution, Hunt said that the state’s decision to charge him left him “flabbergasted.” When asked on cross examination if he was guilty of conspiracy to possess marijuana, Hunt categorically denied any direct guilt.

    “To take the deal, you had to agree to the deal,” Hunt told prosecuting attorney Katie Mallery. “I agreed to tell you guys because, just like I’ve said a hundred times, I’m not afraid of the truth” [“Santee Sioux Trial, Day Two: Ex-Partner Denies Hagen’s Guilt,” Arizona Medical Marijuana Clinics, 2017.05.23].

    Kristi Noem, be ready to pounce. Your GOP primary opponent may be about to come out on the short end of another high-profile case.



  • Jackley Subpoenas SF Reporter Ferguson in Hagen Marijuana Case

    Attorney General Marty Jackley is forcing journalist Dana Ferguson to testify in his prosecution of marijuana entrepreneur Eric Hagen, who goes to trial in Flandreau on May 22. Ferguson’s employer finds the subpoena of its reporter troubling:

    “Commanding our reporter to testify in this case is not only troubling but unnecessary,” Argus Leader Media news director Cory Myers said. “There are multiple avenues for the attorney general to get testimony about the tour, including from any of the five elected officials present, without compromising our reporter’s role as a independent observer” [Jonathan Ellis, “State Prosecutor Orders Reporter to Testify in Flandreau Marijuana Case,” that Sioux Falls paper, 2017.05.13]

    The five legislators who visited the soon-shuttered tribal marijuana resort at Royal River Casino in October 2015 were Mathew Wollmann, Scott Parsley, Spence Hawley, Elizabeth May, and Paula Hawks. I can understand why the Attorney General would want to keep fatuous intern-boinker Mathew Wollmann off the stand—Republican candidates like Jackley probably don’t want to be seen in any court room, dining room, or motel room with the disgraced former legislator for the next few decades. (Besides, Wollmann told AP in 2015 that the Flandreau tour “kind of blew my mind,” suggesting his memory might be faulty.)

    But why not call Parsley, Hawley, Hawks, or May to testify? They are as reliable as witnesses as anyone else on the tour. The Attorney General may not want to give three Democrats or a maverick Republican any time in the spotlight that his Flandreau exertions will draw, but he seems to have plenty of people he could call to court before entangling a journalist in the proceedings.

    South Dakota has no journalist shield law stopping law enforcement from demanding that journalists surrender their confidential sources, but our courts have recognized some journalist privilege from testifying. If a South Dakota court can decline to require testimony from a propaganda blogger concerning confidential sources, the judge in the Hagen trial should afford the same privilege to a real reporter like Ferguson.



  • Mickelson Says Heck No to Taxing Marijuana

    An eager reader notices Speaker G. Mark Mickelson’s (R-12/Sioux Falls) hypocrisy on funding state functions with unhealthy habits. Speaker Mickelson says there’s no way he’ll support the initiative to regulate and tax recreational marijuana:

    I shall choose the form of your destructor!
    I shall choose the form of your destructor!

    “Never. Absolutely not,” said South Dakota House Speaker Mark Mickelson, R-Sioux Falls. “Tax yourself for something you need, don’t tax someone else for their path to destruction” [Dana Ferguson, “Could Recreational Marijuana Help Pay S.D. Teachers?that Sioux Falls paper, 2017.04.03].

    That’s funny—Speaker Mickelson’s neighbor Rep. Steven Haugaard (R-10/Sioux Falls) offered House Bill 1199 this year to repeal another tax on some South Dakotans’ path to destruction, video lottery, and Speaker Mickelson let that healthy proposal die in its first committee hearing. Mickelson’s fellow Republicans offered another bill in 2014 to reduce the state’s reliance on video lottery, and Mickelson didn’t sign on as a co-sponsor. And back in 2013, G. Mark supported a bill to entice more people to the path of video lottery destruction by octupling the maximum payout.

    But, by gosh, not pot!



  • Facebook Loves SD Marijuana Initiatives; Jackley Does Not

    With Attorney General Marty Jackley releasing his slanted explanations for New Approach South Dakota’s ballot measures on medical and recreational cannabis, KOTA-TV runs a poll on Facebook asking voters how they would vote on the two measures.

    KOTA cannabis ballot questions poll, Facebook, screen cap 2017.03.29 05:40 MDT.
    KOTA cannabis ballot questions poll, Facebook, screen cap 2017.03.29 05:40 MDT.

    If Shantel Krebs can look at 98 people clicking on an Aberdeen American News poll and call the 61% swinging her way a “commanding lead” for herself, then the new Approach ballot questioneers should be able to look at 5,700+ people giving recreational pot 76% approval and medical cannabis 91% approval and shout “Game over, Marty!” the moment they submit their completed petitions this fall.

    So we know how the Facebook crowd will vote… assuming the Facebook crowd realizes that real action requires voting, not just clicking.

    Capitalizing on that favorable sentiment will be crucial to New Approach’s movement, since Attorney General Jackley has crafted his “objective, clear, and simple summary” not so much to “educate the voters of the purpose and effect of the initiatives,” as required by statute, as to deter them from legalizing medical and recreational cannabis.

    Jackley’s explanation of the medical cannabis initiative is almost identical to the explanation he issued for the almost identical 2015 measure that New Approach failed to get on the ballot. A.G. Jackley adds just two words to the first line: instead of “The measure,” he opens with “This 95-section measure….” We all know that when Republicans don’t want us to support a plan, they moan, “Oh, it’s so long!” (Cue Michael Scott….)

    Jackley’s explanation of the recreational cannabis initiative does much more to sandbag the measure. First, despite his statutory mandate to provide a concise title (when statute demands “concise”, it’s o.k. to complain about length), Jackley ignores New Approach’s more concise 14-word title (“An Act to provide for the regulation and taxation of cannabis and cannabis products”) and goes for 23: “An initiated measure to legalize certain amounts of marijuana, drugs made from marijuana, and drug paraphernalia, and to regulate and tax marijuana establishments.”

    The recreational cannabis initiative refers to allowing possession of “cannabis paraphernalia”; Jackley says the initiative legalizes “drug paraphernalia.” The initiative refers to cannabis and cannabis products; Jackley says the initiative legalizes “trafficking”—a loaded word—”certain amounts of marijuana or some kinds of controlled substances.” The later overly broad term invites voters to speculate that this cannabis initiative legalizes totally different kinds of drugs—meth! crack! peyote! Dogs and cats living together!

    Jackley works in mention at the end that the recreational cannabis initiative has 35 sections. He asserts that “the acts described in the measure would remain illegal under State or Federal law.” I can buy Federal, but how can an initiative that becomes State law leave the actions it describes illegal under State law?

    Jackley then closes by saying the measure has “numerous conflicts with other State laws”—which one would think are dealt with by the Section 2 phrase Notwithstanding any other law—”and within the measure itself” and “A court may find portions of the measure unconstitutional.”

    Given that courts may find portions of any measure unconstitutional, it seems uninstructive to add that legal opinion to any ballot question explanation. A.G. Jackley didn’t use it in 2016 on Referred Law 19, a measure that raised clear Constitutional concerns but which his fellow Republicans supported. 2016’s Amendment S, the crime victims’ bill of rights, raises Constitutional concerns about due process and presumption of innocence, but since Amendment S was sponsored by a GOP consultant (and now Marty’s campaign manager), Jackley avoided the word “unconstitutional” and instead just said that “a court may determine that the defendant’s rights take priority.” But when Marty’s party doesn’t want anything related to marijuana passed, Jackley is far more inclined to stamp a ballot measure “unconstitutional.”

    Jackley’s sandbags may not be that heavy. If KOTA’s online poll gives any inkling of public sentiment, New Approach simply needs to tap existing enthusiasm for reforming marijuana laws to get the word out. Advertise like crazy, and people won’t even look at the Attorney General’s explanation on the ballot; they’ll just look for the numbers (IM 24 and 25?) that they’ve heard in every ad and Facebook Share from their friends and mark Yes and Yes.



  • Dakota Free Press Podcast 002: Trumpcare, Petitions, Adoption, and Stand-Up Comedy!

    The newest Dakota Free Press Podcast is ready for your earbuds!

    In this week’s show…:

    • Co-host Spencer Dobson and I express our love for snowplow drivers.
    • [3:30] Spencer follows up on questions from Episode 001 on marijuana finance and science.
    • [7:00] I explain how the GOP health care plan could damage South Dakota’s budget and economy.
    • [12:45] Spencer and I talk about protesting bad laws with online petitions and actually repealing bad laws with referendum petitions.
    • [19:05] We go deeper on Senate Bill 149, South Dakota’s attempt to stop same-sex couples from adopting children.
    • [32:25] Finally, I get Spencer to tell us about his career as a stand-up comic.

    Podcast Links:



  • Dakota Free Press Podcast: Fear, Drones, Protest, and Pot!

    The newest Dakota Free Press Podcast, fresh baked in the sound oven this morning, is online!

    My co-host Spencer Dobson and I talk about Neal Tapio’s pro-Trump/anti-refugee resolution, the Legislature’s drone control bill, Governor Daugaard’s protest quashing bill, and the medical marijuana and industrial hemp bills. We also spend a little time talking about how I got out of being a Republican and into blogging.

    For those of you reading along, here are the notes for today’s show:

    SCR 15, a Resolution “Commending President Donald J. Trump in his commitment to keeping the country safe from radical Islamic terrorism”

    SB 80, an Act to “regulate the use of drones under certain conditions and to provide a penalty therefor”

    SB 176, an Act to “preserve the use of public land, to ensure free travel, and to enhance emergency response”

    SB 95, an Act to “add cannabidiol to the list of Schedule IV controlled substances and to exclude it from the definition of marijuana,” and HB 1204, an Act to “authorize the production and sale of industrial hemp”



  • New Approach Training Petition Circulators, Lobbying Three Cannabis Bills in Pierre

    New Approach South Dakota, which is promoting ballot measures on death with dignity (also known as assisted suicide), medical marijuana, and recreational marijuana, is offering training for petition circulators around the state. New Approach SD held training sessions in Sioux Falls, Rapid City, and Spearfish yesterday; their Facebook page invites folks who’d like to put measures on the ballot in 2018 to these upcoming training sessions:

    According to KDLT, New Approach will host three more training sessions after the above through April.

    New Approach SD isn’t putting all of its eggs in the initiative basket. The group is inviting cannabis activists to join them at the Capitol tomorrow for NASD’s Third Annual Cannabis Patients Lobbying Day. They’ll be at Senate Judiciary bright and early at 8 a.m. to support two cannabis-related bills that are up for hearing:

    1. SB 95: “An Act to add cannabidiol to the list of Schedule IV controlled substances and to exclude it from the definition of marijuana”; and
    2. SB 157: “An Act to create an exception for possession of a certain amount of marijuana with a valid medical marijuana card from another state.”

    New Approach SD is also supporting SB 129, which would remove THC, the drug in marijuana, from South Dakota’s list of Schedule I hallucinogenic substances. SB 129 has been assigned to Senate Judiciary but has not been placed on a committee agenda.



  • New Approach Offers Draft Legislation to Legalize (and Tax!) Recreational Marijuana

    We’ve seen the draft text of New Approach South Dakota’s proposed ballot initiatives for assisted suicide (taken from Washington State’s “Death with Dignity” Act) and their medical cannabis proposal (another swing at the measure they failed to get on the 2016 ballot). Now organizer Melissa Mentele shares with me the text of New Approach’s third big initiative, a measure to legalize and tax recreational use of marijuana.

    None of these three initiatives will pass Greg Belfrage’s page-number test. Death with Dignity exceeds 4,000 words; Recreational Marijuana, 4,900; Medical Cannabis; 10,000. But hey—Initiated Measure 22 runs more than 15,000 words, and we passed that last November!

    For what it’s worth, these are three initiatives that, if passed, I hope would never impact my personal life. On assisted suicide, I hope no one I love is ever stricken with a terminal illness that would make my loved one consider asking a doctor for a fatal prescription… although if the prognosis and the pain were that bad, I don’t think I’d stand in my loved one’s way.

    On medical cannabis, I’d rather my loved ones never get sick, but if a doctor says medical cannabis would help treat my loved one’s illness or ease my loved one’s pain, then write me the prescription and get the government out of the way of our health care.

    On recreational marijuana, well, I don’t even drink beer for fun. Alcohol, tobacco, marijuana—all stupid choices (ask Harold Weir, who is my model for parenting). I don’t plan to spend any of my capital—financial or political—on getting buzzed.

    But here’s what might be coming to a petition near you. Read and discuss!

    An Act to Regulate and Tax Marijuana Like Alcohol

    Be it enacted by the people of South Dakota:

    Section 1. Purpose and findings.

    1. In the interest of allowing law enforcement to focus on the growing methamphetamine, heroin, prescription drug problems, violent and property crimes, generating revenue for education and other public purposes, and individual freedom, the State of South Dakota finds and declares that the use of marijuana should be legal for persons 21 years of age or older and taxed in a manner similar to alcohol.
    2. In the interest of the health and public safety of our citizens, the people of the state of South Dakota further find and declare that marijuana should be regulated in a manner similar to alcohol so that:
      1. Individuals will have to show proof of age before purchasing marijuana;
      2. Selling, distributing, or transferring marijuana to minors and other individuals under the age of 21 shall remain illegal;
      3. Driving under the influence of marijuana shall remain illegal;
      4. Legitimate, taxpaying business people, and not criminal actors, will conduct sales of marijuana; and
      5. Marijuana sold in this state will be tested, labeled, and subject to additional regulations to ensure that consumers are informed and protected.
    3. In the interest of enacting rational policies for the treatment of all variations of the cannabis plant, the state of South Dakota further finds and declares that hemp should be regulated separately from strains of cannabis with higher delta-9 tetrahydrocannabinol (THC) concentrations.
    4. The state of South Dakota further finds and declares that it is necessary to ensure consistency and fairness in the application of this chapter throughout the state and that, therefore, the matters addressed by this chapter are, except as specified herein, matters of statewide concern.

    Section 2. Definitions. As used in this chapter unless the context otherwise requires:

    1. “Consumer” means a person 21 years of age or older who purchases marijuana or marijuana products for personal use by persons 21 years of age or older, but not for resale.
    2. “Department” means (SD Liquor Board or Retailers Association ) or its successor agency.
    3. “Immature marijuana plant” means a marijuana plant that has not flowered and which does not have buds that may be observed by visual examination.
    4. “Hemp” means the plant of the genus cannabis and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration that does not exceed threetenths percent on a dry weight basis of any part of the plant cannabis, or per volume or weight of marijuana product, or the combined percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant cannabis regardless of moisture content.
    5. “Locality” means a municipality or, in reference to a location outside the boundaries of a municipality, a county.
    6. “Local regulatory authority” means the office or entity designated to process marijuana establishment applications by a municipality or, in reference to a location outside the boundaries of a municipality, a county.
    7. “Marijuana” means all parts of the plant of the genus cannabis, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including marijuana concentrate. “Marijuana” does not include hemp, nor does it include fiber produced from the stalks, oil or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other product.
    8. “Marijuana accessories” means any equipment, products, or materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, composting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human body.
    9. “Marijuana cultivation facility” means an entity registered to cultivate, prepare, and package marijuana and sell marijuana to retail marijuana stores, to marijuana product manufacturing facilities, to marijuana lounges, and to other marijuana cultivation facilities, but not to consumers. A marijuana cultivation facility may not produce marijuana concentrates, tinctures, extracts, or other marijuana products.
    10. “Marijuana establishment” means a marijuana cultivation facility, a marijuana lounge, a marijuana testing facility, a marijuana product manufacturing facility, or a retail marijuana store.
    11. “Marijuana product manufacturing facility” means an entity registered to purchase marijuana; manufacture, prepare, and package marijuana products; and sell marijuana and marijuana products to marijuana product manufacturing facilities, marijuana lounges, and retail marijuana stores, but not to consumers.
    12. “Marijuana products” means concentrated marijuana products and marijuana products that are comprised of marijuana and other ingredients and are intended for use or consumption, such as, but not limited to, edible products, ointments, and tinctures.
    13. “Marijuana testing facility” means an entity registered to test marijuana for potency and contaminants.
    14. “Possession limit” means the amount of marijuana that may be possessed at any one time by an individual over the age of 21.
      1. In reference to a South Dakota resident, the possession limit is no more than:
        1. One ounce of marijuana, no more than five grams of which may be concentrated marijuana;
        2. Five marijuana plants; and
        3. Any additional marijuana produced by the person’s marijuana plants, provided that any amount of marijuana in excess of one ounce of marijuana must be possessed in the same secure facility where the plants were cultivated.
      2. In reference to a person who is not a resident of South Dakota, the possession limit is no more than one fourth of an ounce of marijuana, including up to one gram of concentrated marijuana.
    15. “Public place” means any place to which the general public has access.
    16. “Retail marijuana store” means an entity registered to purchase marijuana from marijuana cultivation facilities and marijuana and marijuana products from marijuana product manufacturing facilities and to sell marijuana and marijuana products to consumers.
    17. “Unreasonably impracticable” means that the measures necessary to comply with the regulations require such a high investment of risk, money, time, or any other resource or asset that the operation of a marijuana establishment is not worthy of being carried out in practice by a reasonably prudent businessperson.

    Section 3. Personal use of marijuana.

    Notwithstanding any other provision of law, except as otherwise provided in this chapter, the following acts are not unlawful and shall not be a criminal or civil offense under South Dakota law or the law of any political subdivision of South Dakota or be a basis for seizure or forfeiture of assets under South Dakota law for persons 21 years of age or older:

    1. Possessing, consuming, growing, using, processing, purchasing, or transporting an amount of marijuana that does not exceed the possession limit;
    2. Transferring one ounce or less of marijuana and up to six immature marijuana plants to a person who is 21 years of age or older without remuneration;
    3. Controlling property where actions that described by this section occur; and
    4. Assisting another person who is 21 years of age or older in any of the acts described in this section.

    Section 4. Restrictions on personal cultivation, penalty.

    It is unlawful to cultivate marijuana plants in a manner that is contrary to this section.

    1. Marijuana plants may not be cultivated in a location where the plants are subject to public view, including to view from another private property, without the use of binoculars, aircraft, or other optical aids.
    2. A person who cultivates marijuana must take reasonable precautions to ensure the plants are secure from unauthorized access and access by a person under 21 years of age. For purposes of illustration and not limitation, cultivating marijuana in an enclosed, locked space that persons under 21 years of age do not possess a key to constitutes reasonable precautions.
    3. Marijuana cultivation may only occur on property lawfully in possession of the cultivator or with the consent of the person in lawful possession of the property.

    A person who violates this section is guilty of a civil violation punishable by a fine of up to $750.

    Section 5. Public smoking banned, penalty.

    It is unlawful to smoke marijuana in a public place. A person who violates this section is guilty of a civil violation punishable by a fine of up to $100.

    Section 6. Consuming marijuana in a moving vehicle, penalty.

    1. No person shall consume marijuana while operating or driving in a motor vehicle, boat, vessel, aircraft, or other motorized device used for transportation.
    2. Any person found in violation of this section may be fined not more than $200 or have his or her driver’s license suspended for up to six months, or both, for the first violation.
    3. Any person found in violation of this section may be fined not more than $500 or have his or her driver’s license suspended for up to one year, or both for each second or subsequent violation.

    Section 7. False identification, penalty.

    A person who is under 21 years of age may not present or offer to a marijuana establishment or the marijuana establishment’s agent or employee any written or oral evidence of age that is false, fraudulent, or not actually the minor’s own, for the purpose of:

    1. Purchasing, attempting to purchase, or otherwise procuring or attempting to procure marijuana; or
    2. Gaining access to a marijuana establishment.

    A person who violates this section is guilty of a civil violation punishable by a fine not less than $200 and not more than $400.

    Section 8. Unlawful marijuana extraction, penalties.

    1. No person, other than a marijuana product manufacturer complying with this chapter and department regulations, may perform solvent-based extractions on marijuana using solvents other than water or vegetable glycerin.
    2. A person who violates this section is guilty of a felony punishable by up to three years in prison and a fine of up to $5,000.

    Section 9. Marijuana accessories authorized.

    1. Notwithstanding any other provision of law, it is not unlawful and shall not be an offense under South Dakota law or the law of any political subdivision of South Dakota or be a basis for seizure or forfeiture of assets under South Dakota law for persons 21 years of age or older to manufacture, possess, or purchase marijuana accessories, or to distribute or sell marijuana accessories to a person who is 21 years of age or older.
    2. A person who is 21 years of age or older is authorized to manufacture, possess, and purchase marijuana accessories, and to distribute or sell marijuana accessories to a person who is 21 years of age or older.

    Section 10. Lawful operation of marijuana-related facilities.

    Notwithstanding any other provision of law, the following acts, when performed by a retail marijuana store with a current, valid registration, or a person 21 years of age or older who is acting in his or her capacity as an owner, employee, or agent of a retail marijuana store, are not unlawful and shall not be an offense under South Dakota law or be a basis for seizure or forfeiture of assets under South Dakota law:

    1. Possessing, displaying, storing, or transporting marijuana or marijuana products;
    2. Purchasing marijuana from a marijuana cultivation facility;
    3. Purchasing marijuana or marijuana products from a marijuana product manufacturing facility;
    4. Delivering or transferring marijuana or marijuana products to a marijuana testing facility; and
    5. Delivering, distributing, or selling marijuana or marijuana products to consumers or retail marijuana stores.

    Notwithstanding any other provision of law, the following acts, when performed by a marijuana cultivation facility with a current, valid registration, or a person 21 years of age or older who is acting in his or her capacity as an owner, employee, or agent of a marijuana cultivation facility, are not unlawful and shall not be an offense under South Dakota law or be a basis for seizure or forfeiture of assets under South Dakota law:

    1. Cultivating, harvesting, processing, packaging, transporting, displaying, storing, or possessing marijuana;
    2. Delivering or transferring marijuana to a marijuana testing facility;
    3. Delivering, distributing, or selling marijuana to a marijuana cultivation facility, a marijuana product manufacturing facility, a marijuana lounge, or a retail marijuana store;
    4. Receiving or purchasing marijuana from a marijuana cultivation facility; and
    5. Receiving marijuana seeds or immature marijuana plants from a person 21 years of age or older.

    Notwithstanding any other provision of law, the following acts, when performed by a product manufacturing facility with a current, valid registration, or a person 21 years of age or older who is acting in his or her capacity as an owner, employee, or agent of a product manufacturing facility, are not unlawful and shall not be an offense under South Dakota law or be a basis for seizure or forfeiture of assets under South Dakota law:

    1. Packaging, processing, transporting, manufacturing, displaying, or possessing marijuana or marijuana products;
    2. Delivering or transferring marijuana or marijuana products to a marijuana testing facility;
    3. Delivering or selling marijuana or marijuana products to a retail marijuana store, marijuana lounge, or a marijuana product manufacturing facility;
    4. Purchasing marijuana from a marijuana cultivation facility; and
    5. Purchasing marijuana or marijuana products from a marijuana product manufacturing facility.

    Notwithstanding any other provision of law, the following acts, when performed by a marijuana testing facility with a current, valid registration, or a person 21 years of age or 9 older who is acting in his or her capacity as an owner, employee, or agent of a marijuana testing facility, are not unlawful and shall not be an offense under South Dakota law or be a basis for seizure or forfeiture of assets under South Dakota law:

    1. Possessing, cultivating, processing, repackaging, storing, transporting, or displaying marijuana or marijuana products;
    2. Receiving marijuana or marijuana products from a marijuana establishment or a person 21 years of age or older;
    3. Returning marijuana or marijuana products to a marijuana establishment, or a person 21 years of age or older; and

    Nothing in this section prevents the imposition of penalties for violating this chapter or rules adopted by the department or localities pursuant to this chapter.

    Section 11. Verifying the age of marijuana consumers.

    A marijuana establishment or an agent or staffer of a marijuana establishment may not sell, deliver, give, transfer, or otherwise furnish marijuana a person under the age of 21.

    Except as otherwise provided this section, in a prosecution for selling, transferring, delivering, giving, or otherwise furnishing marijuana, marijuana products, or marijuana paraphernalia to any person who is under 21 years of age, it is a complete defense if:

    1. The person who sold, gave, or otherwise furnished marijuana, marijuana products, or marijuana paraphernalia was a retailer or was acting in his or her capacity as an owner, employee, or agent of a retailer at the time the marijuana, marijuana products, or marijuana paraphernalia was sold, given, or otherwise furnished to the person; and
    2. Before selling, giving, or otherwise furnishing marijuana, marijuana products, or marijuana paraphernalia to a person who is under 21 years of age, the person who sold, gave, or otherwise furnished the marijuana or marijuana paraphernalia, or a staffer or agent of the retailer, was shown a document which appeared to be issued by an agency of a federal, state, tribal, or foreign sovereign government and which indicated that the person to whom the marijuana or marijuana paraphernalia was sold, given, or otherwise furnished was 21 years of age or older at the time the marijuana or marijuana paraphernalia was sold, given, or otherwise furnished to the person.
    3. The complete defense set forth this section does not apply if:
      1. The document which was shown to the person who sold, gave, or otherwise furnished the marijuana, marijuana products, or marijuana paraphernalia was counterfeit, forged, altered, or issued to a person other than the person to whom the marijuana, marijuana products or marijuana paraphernalia was sold, given, or otherwise furnished; and
      2. Under the circumstances, a reasonable person would have known or suspected that the document was counterfeit, forged, altered, or issued to a person other than the person to whom the marijuana, marijuana products, or marijuana paraphernalia was sold, given, or otherwise furnished.

    Section 12. Rulemaking.

    Not later than 180 days after the effective date of this act, the department shall adopt regulations necessary for implementation of this chapter. Such regulations shall not prohibit the operation of marijuana establishments, either expressly or through regulations that make their operation unreasonably impracticable. Such regulations shall include:

    1. Procedures for the issuance, renewal, suspension, and revocation of a registration to operate a marijuana establishment, with such procedures subject to all requirements of the [state administrative procedure act];
    2. A schedule of application, registration, and renewal fees, provided, application fees shall not exceed $5,000, with this upper limit adjusted annually for inflation, unless the department determines a greater fee is necessary to carry out its responsibilities under this chapter;
    3. Qualifications for registration that are directly and demonstrably related to the operation of a marijuana establishment;
    4. Security requirements including lighting, physical security, video, and alarm requirements;
    5. Requirements for the transportation and storage of marijuana and marijuana products by marijuana establishments;
    6. Employment and training requirements, including requiring that each marijuana establishment create an identification badge for each employee or agent;
    7. Requirements designed to prevent the sale or diversion of marijuana and marijuana products to persons under the age of 21;
    8. Standards for marijuana product manufacturers to determine the amount of marijuana that marijuana products are considered the equivalent to;
    9. Requirements for marijuana and marijuana products sold or distributed by a marijuana establishment, including requiring marijuana products’ labels to include the following:
      1. The length of time it typically takes for a product to take effect;
      2. The amount of marijuana the product is considered the equivalent to;
      3. Disclosing ingredients and possible allergens;
      4. A nutritional fact panel;
      5. Requiring opaque, child resistant packaging, which must be designed or constructed to be significantly difficult for children under five years of age to open and not difficult for normal adults to use properly as defined by 16 C.F.R. 1700.20 (1995); and
      6. Requiring that edible marijuana products be clearly identifiable, when practicable, with a standard symbol indicating that it contains marijuana;
    10. Health and safety regulations and standards for the manufacture of marijuana products and both the indoor and outdoor cultivation of marijuana by marijuana establishments;
    11. Restrictions on advertising, marketing, and signage including but not limited to a prohibition on mass-market campaigns that have a high likelihood of reaching minors;
    12. Restrictions on the display of marijuana and marijuana products, including to ensure that marijuana and marijuana products may not be displayed in a manner that is visible to the general public from a public right-of-way;
    13. Restrictions or prohibitions on additives to marijuana and marijuana-infused products, including but not limited to those that are toxic, designed to make the product more addictive, designed to make the product more appealing to children, or misleading to consumers; the prohibition may not extend to common baking and cooking items;
    14. Restrictions on the use of pesticides that are injurious to human health;
    15. Regulations governing visits to cultivation facilities and product manufacturers, including requiring the marijuana establishment to log visitors;
    16. A definition of the amount of delta-9 tetrahydrocannabinol that constitutes a single serving in a marijuana product;
    17. Standards for the safe manufacture of marijuana extracts and concentrates;
    18. Requirements that educational materials be disseminated to consumers who purchase marijuana-infused products;
    19. Requirements for random sample testing to ensure quality control, including by ensuring that marijuana and marijuana infused products are accurately labeled for potency. The testing analysis must include testing for residual solvents, poisons, or toxins; harmful chemicals; dangerous molds or mildew; filth; and harmful microbial such as E. Coli or salmonella and pesticides;
    20. Standards for the operation of testing laboratories, including requirements for equipment and qualifications for personnel;
    21. Civil penalties for the failure to comply with regulations made pursuant to this chapter; and
    22. Procedures for collecting taxes levied on marijuana cultivation facilities.

    In order to ensure that individual privacy is protected, the department shall not require a consumer to provide a retail marijuana store with personal information other than government issued identification to determine the consumer’s age, and a retail marijuana store shall not be required to acquire and record personal information about consumers.

    Section 13. Marijuana establishment registrations.

    1. Each application or renewal application for an annual registration to operate a marijuana establishment shall be submitted to the department. A renewal application may be submitted up to 90 days prior to the expiration of the marijuana establishment’s registration
    2. The department shall begin accepting and processing applications to operate marijuana establishments 180 days after the effective date of this act.
    3. Upon receiving an application or renewal application for a marijuana establishment, the department shall immediately forward a copy of each application and half of the registration application fee to the local regulatory authority for the locality in which the applicant desires to operate the marijuana establishment, unless the locality has not designated a local regulatory authority.
    4. Within 45 to 90 days after receiving an application or renewal application, the department shall issue an annual registration to the applicant, unless the department finds the applicant is not in compliance with regulations enacted pursuant to Section 12 or the department is notified by the relevant locality that the applicant is not in compliance with ordinances and regulations made pursuant to Section 14 and in effect at the time of application.
    5. If a locality has enacted a numerical limit on the number of marijuana establishments and a greater number of applicants seek registrations, the department shall solicit and consider input from the local regulatory authority as to the locality’s preference or preferences for registration.
    6. Upon denial of an application, the department shall notify the applicant in writing of the specific reason for its denial.
    7. Every marijuana establishment registration shall specify the location where the marijuana establishment will operate. A separate registration shall be required for each location at which a marijuana establishment operates.
    8. Marijuana establishments and the books and records maintained and created by marijuana establishments are subject to inspection by the department.
    9. South Dakota Native American Tribes are exempt from the registration requirements as being a sovereign nation their laws will supersede any state regulations.

    Section 14. Local control.

    1. A locality may prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana store through an initiated or referred measure, provided, any initiated or referred measure to prohibit the operation of marijuana cultivation facilities, marijuana product manufacturing facilities, marijuana testing facilities, or retail marijuana stores must appear on a general election ballot.
    2. A locality may enact ordinances or regulations not in conflict with this chapter, or with regulations enacted pursuant to this chapter, governing the time, place, manner, and number of marijuana establishment operations. A locality may establish civil penalties for violation of an ordinance or regulations governing the time, place, and manner of a marijuana establishment that may operate in such locality.
    3. A locality may designate a local regulatory authority that is responsible for processing applications submitted for a registration to operate a marijuana establishment within the boundaries of the locality.
    4. A locality may establish procedures for the issuance, suspension, and revocation of a registration issued by the locality in accordance with this section.
    5. A locality may establish a schedule of annual operating and registration fees for marijuana establishments.

    Section 15. Places of employment.

    Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees or discipline employees who are under the influence of marijuana in the workplace.

    Section 16. Driving under the influence prohibited.

    Nothing in this chapter is intended to allow driving under the influence of marijuana or driving while impaired by marijuana or to supersede laws related to driving under the influence of marijuana or driving while impaired by marijuana.

    Section 17. Minors.

    Nothing in this chapter is intended to permit the transfer of marijuana, with or without remuneration, to a person under the age of 21 or to allow a person under the age of 21 to purchase, possess, use, transport, grow, or consume marijuana.

    Section 18. Private property rights.

    Except as provided in this section, the provisions of this chapter do not require any person, corporation, or any other entity that occupies, owns, or controls a property to allow the consumption, cultivation, display, sale, or transfer of marijuana on or in that property.

    In the case of the rental of a residential dwelling, a landlord may not prohibit the possession of marijuana or the consumption of marijuana by non-smoked means unless:

    1. The tenant is a roomer who is not leasing the entire residential dwelling;
    2. The residence is incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service;
    3. The residence is a transitional housing facility; or
    4. Failing to prohibit marijuana possession or consumption would violate federal law or regulations or cause the landlord to lose a monetary or licensing-related benefit under federal law or regulations.

    Section 19. Contracts enforceable.

    It is the public policy of this state that contracts related to the operation of a marijuana establishment registered pursuant to this chapter should be enforceable. It is the public policy of this state that no contract entered into by a registered marijuana establishment or its employees or agents as permitted pursuant to a valid registration, or by those who allow property to be used by a establishment, its employees, or its agents as permitted pursuant to a valid registration, shall be unenforceable on the basis that cultivating, obtaining, manufacturing, distributing, dispensing, transporting, selling, possessing, or using marijuana or hemp is prohibited by federal law.

    Section 20. Marijuana Regulation Fund.

    The Marijuana Regulation Fund is established consisting of fees collected and civil penalties imposed under this chapter. The department shall administer the fund. Monies in the fund are continuously appropriated.

    Section 21. Excise tax on marijuana.

    An excise tax is imposed on the sale or transfer of marijuana from a marijuana cultivation facility to a retail marijuana store, a marijuana lounge, or marijuana product manufacturing facility at the rate of:

    1. $50 per ounce on all marijuana flowers;
    2. $15 per ounce on all part of marijuana other than marijuana flowers and immature marijuana plants; and
    3. $25 per immature marijuana plant.

    The rates of tax imposed by this section apply proportionately to quantities of less than one ounce. The department shall adjust the rates annually to account for inflation or deflation based on the Consumer Price Index. 17

    On the 15th day of each month, every marijuana cultivation facility shall pay the excise taxes due on the marijuana that the marijuana cultivation facility transferred or sold in the prior calendar month.

    Section 22. Apportionment of revenue. Revenues generated in excess of the amount needed to implement and enforce this act by the marijuana excise tax shall be distributed every three months as follows:

    1. Forty percent shall be distributed to the South Department of Education to retain and recruit educators. Five percent of the forty percent is to be set aside into an account to provide supplies and aid to all classrooms in South Dakota; including but not limited to classroom supplies, A/V equipment, computers, field trips and unpaid nutrition accounts.
    2. Ten percent shall be distributed to the South Dakota Department of Health for use in evidence-based, voluntary programs for the prevention or treatment of alcohol, tobacco, heroin, methamphetamine, prescription drugs, and marijuana abuse;
    3. Ten percent shall be distributed to the South Dakota Department of Health for a scientifically and medically accurate public education campaign educating youth and adults about the health and safety risks of alcohol, tobacco, heroin, methamphetamine, prescription drug and marijuana;
    4. Thirty percent shall be distributed to the General Fund;
    5. Ten Percent shall be distributed to South Dakota Law Enforcement for training, detection dogs, equipment and educational programs to aid in youth diversion.

    Section 23. Self-executing, severability, conflicting provisions. All provisions of this chapter are severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions.

    Section 24. Effective date.

    This Act shall take effect immediately upon passage.

    Section 25. Commutation of non violent cannabis offenders.

    No later then 180 days of passage prisoners in the SD State Prisons, County jails and those waiting to be sentenced will have their cases reviewed and sentences commuted if they meet criteria.

    1. Conviction/Charges must be of a non violent nature.
    2. Conviction/Charges must be for cannabis only.

    Section 26: South Dakota Native American Tribal Cannabis Laws

    Native American tribes in South Dakota are not required to participate in legalization laws passed by the state of SD. Tribes may continue to remain non-legal for cannabis use unless they through their own voting process legalize cannabis for medicinal or recreational purposes. Native American Tribes are not required to participate in the state registration program or the state tax structure. All taxes collected by tribal cannabis sales are to be used for reservation improvement of infrastructure, housing and education.



  • Four States Voting on Medical Cannabis, Five on Recreational Marijuana

    24* states and the District of Columbia have legalized medical cannabis. That’s 54% of the U.S. population. This November, another 8% may join that total, as Montana, North Dakota, Arkansas, and Florida have medical cannabis on their ballots. Governing lists polling data on some of these ballot questions:

    • Arkansas: 58% for, 34% against (one poll).
    • Florida: 70% for, 22% against (average of ten polls).
    • Montana: no polls, but opponents out-fundraising proponents $124K to $55K.
    • North Dakota: 47% for, 41% against (one poll).

    Recreational use of marijuana is legal in Alaska, Colorado, Oregon, Washington, and the District of Columbia, allowing less than six of the nation’s population to toke up in their home states. That percentage could jump to over 10% when five more states vote on recreational pot ballot measures in November:

    South Dakota had a shot at voting on medical cannabis this year, but both Secretary of State Shantel Krebs and Judge Mark Barnett found New Approach South Dakota’s ballot initiative petition lacked sufficient signatures to make the ballot.

    *The source I consult counts 25 states. Montana passed a medical marijuana measure in 2004, but the Montana Legislature repealed it in 2011.