Our hemp test case is coming to Jackson County, where the state will try to hang Robert Herzberg of Colorado for trying to drive 292 pounds of weed through South Dakota. The Highway Patrol says the “green leafy substance” was marijuana, based on its field-tested delta9-THC level of 0.2932%. Herzberg, his lawyer, and the Minnesota Hemp Association say the confiscated cargo is federally permitted industrial hemp.
Now Herzberg is also alleged to have been blowing by Kadoka on I-90 at 86 miles an hour with marijuana and cocaine in his system. Trooper Benjamin Filipiak says in his arrest report Herzberg was so nervous during the stop that “his heartbeat” was “visible through his shirt.” Trooper Dylan Dowling reported the same visible heartbeat (which only goes to show that cops stare intently at every suspect’s chest, male or female?), as well as labored breathing and shaking hands. Herzberg also willingly consented to surrender a cup of urine and the pass code to his phone.
Federal law won’t help get Herzberg off the hook for speeding and snorting. But if Trooper Filipiak’s THC field test was correct, federal law will clear him for transporting USDA-approved hemp with less than 0.3% THC through South Dakota. The USDA reiterated in May what should be obvious to anyone with an understanding of the Farm Bill and the Commerce Clause: “States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.”
But while we wait to lose this case—which is happening solely because of Governor Kristi Noem’s stubborn resistance to hemponomic development—we’re losing real money, as hemp growers are spreading the word to stay out of South Dakota:
The Minnesota Hemp Association is concerned because one of their members is out thousands of dollars as his alleged hemp is sitting in Pierre. They’re also taking other steps.
“We are certainly recommending to our members not to transport through South Dakota until this has been resolved,” [MHA exec Joe] Radinovich said. “We’re asking all states to act quickly to figure out a coherent framework of laws that allow legitimate business people to engage in a legitimate business, which is to grow hemp for its multiple purposes including fiber, construction material” [Michael Geheren, “Colorado Man Could Face Prison Time for Allegedly Transporting Industrial Hemp Through South Dakota,” KELO-TV, 2019.08.21].
Shippers making the Colorado–Minnesota run can easily bypass South Dakota via I-80 and I-35, while more northerly growers can safely take I-94, since everyone around us has brought their state laws into compliance with the federal authorization of hemp.
If Jackson County State’s Attorney Daniel Van Gorp has any sense, he’ll drop the possession and distribution charges, collect a fine for Herzberg’s lead foot and juiced blood, and let him take his legal cargo—slowly, Robert, under the speed limit—to its proper owners in Minnesota.
Then again, maybe the sensible thing for Van Gorp to do is keep the possession and distribution charges alive, expedite them through Circuit Court straight to a ruling by whatever appeals level is necessary to overturn South Dakota’s illegal prohibition of hemp and give our fellow Americans one less reason to fear driving through and spending money in our fair state.