“Now state’s attorneys including myself, Pennington, Lincoln, Minnehaha, and Brown (counties), believe that there is a gap in the law right now,” said Nelson.
“There’s not a basis under the law as it’s written now to prosecute it as controlled substance. So then we look at the definition marijuana. As marijuana is defined under South Dakota law right now, it has to be in an unaltered state, and CBD is an altered state of marijuana, so it actually doesn’t fit the definition marijuana either.”
Nelson warns against the possession of CBD despite the gap in the law.
“I am not advising anyone in the state of South Dakota to be in possession of it (CBD oil) until there is a definitive ruling on it,” continued Nelson. “The Attorney General’s office has issued a memorandum saying that regardless of whether or not CBD oil contains THC, he can still prosecute it as a felony. If you are found in possession of CBD, you will not be prosecuted for it in Brookings County.”
An exception is if the CBD is sent out to the state health lab and tested and meets the definition of marijuana. “If the presence of THC is found, then it’s completely different. Then we can initiate a prosecution on that” [Matthew Rhodes, “CBD Oil Cases Won’t Be Prosecuted in Brookings County,” Brookings Register, 2019.05.11].
Pennington, Lincoln, Minnehaha, Brown, and Brookings: that’s 48.8% of South Dakota’s population. If just one more county of the next eleven largest counties (Codington, Meade, Lawrence, Yankton, Davison, Beadle, Hughes, Union, Oglala Lakota, Clay, or Lake) swings Nelson and Vargo’s way, a majority of South Dakotans will be able to possess CBD oil without fear of prosecution by their local law enforcement. And since Ravnsborg has never tried a criminal case in front of a jury, the chances of being successfully prosecuted by the Attorney General anywhere in South Dakota are pretty slim.
The growing state’s attorneys’ revolt against the Attorney General show that voting in local elections matters… especially when you need sensible local officials to check ignorance and incompetence in Pierre.
* * *
Speaking of ignorance and incompetence, Brookings blogger Pat Powersflakked for Dan Nelson in the 2016 and 2018 elections. Pat Powers thus supported a candidate who is opening his county’s door to CBD oil, which Governor Noem thinks should be treated as an illegal drug posing the same risk as heroin. Governor Noem, a sponsor of Powers’s blog, is thus advertising on a blog that has promoted a candidate who is now taking an action that, in her mind, leads to reefer madness.
There is a need for thinkers and doers in Pierre to get rid of the old cord wood there that think CAFO’s are our future.
T. Camp
2019-05-12 08:39
Hemp is a valuable fiber supplied by nature, A large number of essential products such as all manners of clothing and ropes can be made from hemp.
Hemp ropes are more resistant to fire which is a concern to ocean going shipping. Noem’s veto of the hemp bill was stupid and unnecessary.
Now if we could just get some state’s attorneys to say that, because federal makes hemp legal and supersedes state law, they won’t prosecute farmers for cultivating and selling hemp….
bearcreekbat
2019-05-12 11:01
Cory, no rational states attorney can take the position you suggest. Our own states attorneys are relying on ambiguities in SD law, not federal legalization, to decline prosecuting CBD cases.
And in fact federal law does not “make hemp legal.” It was always “legal” until we adopted laws making it illegal. Today, we have simply amended or repealed those stupid federal laws so that hemp is no longer classified illegal under federal law.
Unfortunately, that change in law does not affect stupid state legislators (and those who vote for them) from continuing to declare hemp illegal within the physical jurisdiction of a state, just as a state may prohibit alcohol, gambling, or any other fake but feared vice, so long as such prohibition does not transgress some federal constitutional protection.
Perhaps some day the SCOTUS will decide that restricting hemp violates the federal commerce clause, or that the individual right of privacy protected by the federal Constitution encompasses the right to grow and possess harmless commodities like hemp, but until that day, states are free to punish residents for conduct that has not been declared illegal under federal law. When a state clearly decides to adopt such unwise laws, state prosecutors are duty to bound to enforce them.
Timothy Even
2019-05-12 14:31
Are we running short of forced prison labor in Springfield? Are some counties trying to make a buck housing prisoners? Or is the AG trying to get more prisons built by filling ours up with poor people trying to find relief for pain that they can’t get without health insurance because South Dakota refuses to expand Medicaid?
Porter Lansing
2019-05-12 14:36
SD outlaws CBD oil but allows the direct sales of kratom? Catch up, will ‘ya? Sheeeeeesh…
Commerce Clause? Did BCB just say Commerce Clause? I know somebody who just won a case on the Commerce Clause….
bearcreekbat
2019-05-12 15:25
Go for it Cory! Congress already has relied on the commerce clause to prevent SD from stopping hemp on highways.
Section 763 of The Omnibus Appropriations Act of 2016 (P.L. 114-113) (“the 2016 Funding Act”), passed on December 18, 2015, which says:
“None of the funds made available by this act or any other act may be used… to prohibit the transportation, processing, sale or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”
Blindman has a great comment on the Billie Sutton Leadership Institute post about how the SDDP and independents can use Noem’s and the SDGOP’s barring hemp for political advantage. Go take a look. Blindman is very sage, BCB-esque, you might say.
Thanks for that provision, BCB. I would think that provision would force Noem to literally call off the dogs: if SD law enforcement stops a vehicle and subjects it to a drug dog search and the dogs hit on the hemp that Noem says confuses them so, the cops will be illegally prohibiting the transportation of that Section 7606 product and endangering any federal funds the state receives.
bearcreekbat
2019-05-13 10:15
Debbo, is this the comment by blindman that you are referring to?
“In short, Kristi’s money just gave pot a boost.”
The bumbling idiots in the Noem deministration keep tripping over their own feet. Cory’s summary is perfect, just perfect.
The Jason is, to put it mildly, not all there.
We here will need hemp, along with the production and sales of CBD to further open opportunities for workers that will be displaced in the near future. The Displaced Plainsman has a post up that is a sobering read. http://thedisplacedplainsman.blogspot.com/2019/05/south-dakota-at-risk-for-severe-job.html
There is a need for thinkers and doers in Pierre to get rid of the old cord wood there that think CAFO’s are our future.
Hemp is a valuable fiber supplied by nature, A large number of essential products such as all manners of clothing and ropes can be made from hemp.
Hemp ropes are more resistant to fire which is a concern to ocean going shipping. Noem’s veto of the hemp bill was stupid and unnecessary.
Now if we could just get some state’s attorneys to say that, because federal makes hemp legal and supersedes state law, they won’t prosecute farmers for cultivating and selling hemp….
Cory, no rational states attorney can take the position you suggest. Our own states attorneys are relying on ambiguities in SD law, not federal legalization, to decline prosecuting CBD cases.
And in fact federal law does not “make hemp legal.” It was always “legal” until we adopted laws making it illegal. Today, we have simply amended or repealed those stupid federal laws so that hemp is no longer classified illegal under federal law.
Unfortunately, that change in law does not affect stupid state legislators (and those who vote for them) from continuing to declare hemp illegal within the physical jurisdiction of a state, just as a state may prohibit alcohol, gambling, or any other fake but feared vice, so long as such prohibition does not transgress some federal constitutional protection.
Perhaps some day the SCOTUS will decide that restricting hemp violates the federal commerce clause, or that the individual right of privacy protected by the federal Constitution encompasses the right to grow and possess harmless commodities like hemp, but until that day, states are free to punish residents for conduct that has not been declared illegal under federal law. When a state clearly decides to adopt such unwise laws, state prosecutors are duty to bound to enforce them.
Are we running short of forced prison labor in Springfield? Are some counties trying to make a buck housing prisoners? Or is the AG trying to get more prisons built by filling ours up with poor people trying to find relief for pain that they can’t get without health insurance because South Dakota refuses to expand Medicaid?
SD outlaws CBD oil but allows the direct sales of kratom? Catch up, will ‘ya? Sheeeeeesh…
Commerce Clause? Did BCB just say Commerce Clause? I know somebody who just won a case on the Commerce Clause….
Go for it Cory! Congress already has relied on the commerce clause to prevent SD from stopping hemp on highways.
https://cannabusiness.law/congress-supports-interstate-hemp-commerce-in-new-funding-act/
Blindman has a great comment on the Billie Sutton Leadership Institute post about how the SDDP and independents can use Noem’s and the SDGOP’s barring hemp for political advantage. Go take a look. Blindman is very sage, BCB-esque, you might say.
Thanks for that provision, BCB. I would think that provision would force Noem to literally call off the dogs: if SD law enforcement stops a vehicle and subjects it to a drug dog search and the dogs hit on the hemp that Noem says confuses them so, the cops will be illegally prohibiting the transportation of that Section 7606 product and endangering any federal funds the state receives.
Debbo, is this the comment by blindman that you are referring to?
https://dakotafreepress.com/2019/04/16/sutton-launches-leadership-institute/#comment-134958
Yes, BCB, the pot of tea. 😊😊😊 Doesn’t he have a way with words?
Debbo, definitely!