So what if it’s legal: Truck driver arrested for hauling hemp into Idaho

Confirming carriers’ worst fears about hauling cannabis products, a truck driver was arrested last month for bringing hemp across the Oregon border into Idaho.  

The arrest, which came a little over month after the Farm Bill made industrial hemp and all of its byproduct legal, underscores the risks independent truckers and trucking companies face navigating a rapidly changing legal environment where state and federal cannabis laws are often in conflict.

In this particular case, the disconnect revolves around a grey area caused by the timing of the Farm Bill, said Nathaniel Saylor, a transportation attorney with the firm Scopelitis, Garvin, Light, Hanson & Ferry.

The bill, which passed in late December 2018,  contains a preemption provision saying that states must allow interstate transportation of hemp — but only if hemp is produced under a federal program or a state regulatory program.

“Because the bill passed but none of those programs yet exist,” Saylor said, “technically Idaho has an argument for its position,” which is that the transport of hemp across its state lines is against the law.

There’s another disconnect at the heart of this case – the chemical distinction between marijuana and hemp.  More on that in a minute. First, here’s what happened:

On January 24, Idaho State Police arrested Denis Palamarchuck, a trucker employed by VIP Transport in Portland, for carrying what the state of Idaho says is 6,701 pounds of illicit marijuana. (Palamarchuck said he was carrying hemp, but an Idaho state policeman checking the load at a weigh station decided to test the product anyway.)

The arrest occurred after the analysis revealed the product contained THC, the psychoactive chemical present in hemp and marijuana.

But herein lies a crucial distinction. Marijuana and hemp are both members of the cannabis family. But hemp contains a very low concentration of THC (less than .03 percent), which is why it doesn’t get you high. It’s also why the federal government legalized it. Marijuana, by contrast, has an abundance of THC (around 15 to 43 percent).  Testing reveals the presence of THC, but not how much or whether the product is hemp or marijuana.

Ivan Pavily, VIP Transport’s owner, has no doubt about the nature of the product Palamarchuck was carrying.

“One million percent, that product is hemp,” Pavily said.  He said he consulted with a lawyer before taking on the hemp shipment, and also had the hemp tested by a third party. “Only then was it okay to ship it.”

“Everything the driver did was legal,” said Pavily.

Idaho begs to differ. State law defines marijuana as “all parts of the plant of the genus cannabis, regardless of species.” The law states that any “evidence” of THC “shall create a presumption that such material is ‘marijuana’ as defined and prohibited herein.”

In other words, Idaho law classifies any cannabis plant with THC as marijuana.

Big Sky Scientific LLC, the Colorado company that was having the product shipped, said it bought about 13,000 pounds of industrial hemp from Boones Ferry Berry Farms in Hubbard, Oregon, CNN has reported. Big Sky has filed a lawsuit against the Idaho State Police, Ada County and attorney Jan M. Bennetts, saying the product is hemp, not pot.

But even if Idaho agreed the product was hemp, not marijuana, Big Sky and Parmachuck would still be trapped in what is essentially a technicality over the interstate transportation preemption provision. Over the weekend, an Idaho court denied Big Sky’s motion, arguing that legal hemp rule doesn’t take effect until the U.S. Department of Agriculture has approved Idaho state plans or developed its own.

Because cannabis is so politicized, even after state hemp plans are implemented shippers and carriers might want to be cautious about moving hemp, Saylor said. “One can envision a posturing politician taking a position that the federal government can’t tell the state what to do and continuing to arrest and prosecute,” he said.

Saylor said he would counsel clients to get approval at the state level before undertaking a hemp shipment.

That won’t be an issue for Pavily.

“I won’t be shipping hemp any time soon,” he said.

Following his arrest, Palamarchuck was released on a $100,000 bond.