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SD Hemp Ban Faces Court Test in Jackson County

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.


  1. El Rayo X 2019-08-22 08:29

    As a comparison, 292 lbs. of corn is worth about $20. How much money can be made from hemp by driving 292 lbs. from Colorado to Minnesota for processing? An 800-900 mile, one-way trip by car is going to run at least $100 in gas alone. Ten to 12 hours of drive labor would be around another $100 at least. To send the driver and car back doubles those figures. Now add the input costs from planting to harvesting that 292 lbs. of hemp. Is there a positive cash flow? Cory, you’re a number crunching animal, show me the money. Also, why isn’t there a hemp processing facility in Colorado that Mr. Herzberg could have gone to risk free?

  2. jerry 2019-08-22 12:04

    Cultivated industrial hemp plants usually consist of a spindly main stalk covered with leaves. Considered a low-maintenance crop, hemp plants typically reach between 6 to 15 feet in height. Depending on the purpose, variety and climatic conditions, the period between planting and harvesting ranges from 70 to 140 days. One acre of hemp can yield an average of 700 pounds of grain, which in turn can be pressed into about 22 gallons of oil and 530 pounds of meal. The same acre will also produce an average of 5,300 pounds of straw, which can be transformed into approximately 1,300 pounds of fiber.

    Industrial hemp may be an excellent rotation crop for traditional crops, because it suppresses weeds and decreases outbreaks of insect and disease problems. Hemp may also rebuild and condition soils by replacing organic matter and providing aeration through its extensive root system.

  3. jerry 2019-08-22 12:08

    If the hemp does not have the strength to be called cannabis, then there is no case. It doesn’t matter how much or how little it costs to transport the meal to Minnesota if it is not illegal.

  4. jerry 2019-08-22 12:27

    There are some plants that process in Colorado, but now is harvest time so they are swamped. Makes sense to go to where it is gonna be marketed. CBD oil takes hours to produce each batch. Remember, this is now over a billion dollar a year industry that is just getting started. To bad we here in South Dakota only watch it grow.

  5. Certain Inflatable Recreational Devices 2019-08-22 13:07

    Under SoDak’s stupid law, any cannabis leaves and/or buds are “marijuana.” I’ve seen no description of the seized load in question here, but if it was going to a “hemp processing facility,” it may have only been stalks.

    Stalks are not illegal in SoDak.

    However, it may have been whole plants, or just buds for processing into CBD and other extracts. If it was just buds, that could have been a pretty valuable load.

    A question to consider is “Why was it only 292 pounds?” Any “truck” could haul a lot more than that. Seems like a pretty light load to go to all that trouble for. Maybe it was a test case set-up.

  6. Joseph 2019-08-22 14:13

    Colorado’s hemp/marijuana industry is more established than others. So I’m guessing that processors in other states have found it profitable to purchase and transport from Colorado and other more established states than to try to buy it locally (right now at least).

    At the end this is just stupid though again.

  7. Debbo 2019-08-22 20:58

    How embarrassing for SD.

  8. grudznick 2019-08-22 21:21

    My good friend Bob has some good points. Why would a fellow, toked up higher than a kite on the demon weed and snorted full of cocaine, be driving around in a car with a few hundred pounds of “buds”? His hands all a-tremble, his pupils wide with drug induced pupil-wideness, and his blood full of illegal narcotics.

    The “hemp industry” should be ashamed. The Shame Nun marches for them tonight.

  9. Shirley Moore 2019-08-23 05:55

    Read in the last month or so that Kansas pulled the same stunt on a guy from Colorado. Must be another Republican need to show ignorance of the law.

  10. Debbo 2019-08-23 14:12

    Stunts are all the GOP has.

  11. Debbo 2019-08-25 12:39

    From the Sunday Strib:

    “The Minnesota Hemp Association is protesting the arrest of a hemp driver in South Dakota.

    ” The group’s executive director, former Minnesota legislator Joe Radinovich, accuses South Dakota of violating the 2018 Farm Bill by arresting the driver.”

  12. Debbo 2019-08-25 12:45

    From the Sunday Strib:
    “Winona LaDuke, environmentalist and a member of the White Earth Band of Ojibwe, is pushing hemp in Indian Country.”

    “LaDuke’s business, Winona’s Hemp & Heritage Farm, is working with her new Anishinaabe Agricultural Institute to build a “new locally grown economy based on food, energy and fiber” through a new hemp-production facility on LaDuke’s land next to tribal lands.

    “Hemp can do almost everything that petroleum can do, including replacing some cotton and plastics.

    ” “In our first year, we had seven hemp growers on the reservation,” LaDuke told the magazine this summer. “Now, there’s like 45.

    “We’re going to need people to grow a lot of hemp to change the textile industry in this country. Everyone wants to make a lot of money on CBD [oils, pills and other ingestibles for health]. I’m trying to figure out how to protect Mother Earth, protect our water, protect our soil. If hemp can help build soil and sequester carbon, that’s also a pretty big thing.”

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