JACKSON COUNTY, S.D. (KELO) – A courthouse in a county of just over 3,000 people in the western part of South Dakota could soon be the home of a case that will test state vs. federal laws on the issue of industrial hemp.

On July 16, at around 5:20 p.m. MT, a South Dakota Highway Patrol Trooper pulled over 41-year-old Colorado man Robert Herzberg for speeding six miles above the 80 mph limit on I-90 near Kadoka, according to court documents.

Herzberg was allegedly transporting industrial hemp from Boulder, Colorado, to Minneapolis, Minnesota, to be extracted.

He later told law enforcement that it’s cheaper to transport the hemp rather than extract it in Colorado.

Back to the traffic stop, the Highway Patrol Trooper asked Herzberg about his trip.

“Mr. Herzberg told me that he was taking a load of hemp to Minneapolis,” the Trooper wrote in court papers. “I then told Mr. Herzberg that I would be searching the vehicle because I could smell the odor of raw marijuana.”

“The whole, whole car’s full of of hemp so that’s what you’re smelling… there’s no way you couldn’t smell that.”

Robert Herzberg told South Dakota Highway Patrol Troopers according to court papers

South Dakota Highway Patrol documents say the trooper found 292 pounds of “raw marijuana” in two large white sacks in the back of the rented Chevy Tahoe.

Herzberg was charged with three felonies and one misdemeanor:

  • Possession of more than 10 lbs of marijuana
  • Possession with intent to distribute 1 lb or more of marijuana
  • Unauthorized ingestion of controlled drug/substance in schedules I or II
  • Ingest intoxicant other than alcoholic beverage

Herzberg’s attorney Matthew Kinney said it’s those first two charges that are causing the conflict.

The field test challenge

He provided KELOLAND News with a lab report from CSD Centennial Lab Services. The key number in the report is delta9-THC, which had a reading of 0.2932%.

According to the 2018 Farm Bill, Hemp cannot exceed 0.3% of delta9-THC.

Joe Radinovich is the executive director of the Minnesota Hemp Association. He said the confusion could’ve been caused in the field test.

“The products look similar,” Radinovich said. “In this case, it could potentially be true, if it was tested with very rudimentary field test equipment that trace amounts of THC could’ve showed up in their field test.”

According to court papers, the trooper conducted a field test.

“I field tested the green leafy substance and it tested positive for marijuana,” the trooper wrote in the arrest narrative.

It’s unclear how South Dakota Highway Patrol field tests for marijuana. KELOLAND News asked the Department of Public Safety for a policy. Instead, we received this statement:

“We are currently working to find a lab to test the items seized,” the department said.

This is at the heart of a debate happening in Pierre. Gov. Kristi Noem (R-SD), who voted for the 2018 Farm Bill when she was in Congress, has previously brought up the concerns of testing.

“This issue underscores the ongoing issues surrounding industrial hemp. Roadside tests are unable to distinguish between hemp and marijuana. Drug dogs alert to both hemp and marijuana,” Noem’s spokeswoman Kristin Wileman said in a statement to KELOLAND News on Wednesday.

“It’s not true that hemp, which would contain a low amount of THC, is the same thing as marijuana,” Radinovich said.

Noem’s office put out a video earlier this year with a Highway Patrol drug dog trying to tell the difference between marijuana and hemp. The dog alerted the same way.

Courtesy: Office of Gov. Kristi Noem

KELOLAND Capitol News Bureau Correspondent Bob Mercer reports Noem sent several cabinet secretaries to a special legislative session this week to fight against industrial hemp.

The public safety officials said commercial testing could take months or years and would cost thousands of dollars per case.

Transporting through South Dakota

Past the issue of testing is whether it’s illegal to transport through South Dakota.

The 2018 Farm Bill took hemp off the U.S. Controlled Substances Act and made it an agriculture commodity. The regulation of hemp also became a state issue and across the country, legislation was quickly passed.

South Dakota lawmakers passed legislation to legalize industrial hemp earlier this year. However, it was vetoed by Noem. Lawmakers weren’t able to override the veto.

Now it’s the subject of a legislative committee studying the topic in Pierre.

“Industrial hemp and all cannabis derivatives remain illegal in South Dakota and are illegal to transport through our state,” Public Safety spokesperson Tony Mangan said in a statement.

At odds, though, is a memo from the U.S. Department of Agriculture released in May. Lawyers for the USDA determined that “states and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.”

Kinney calls this a conflict of the law. Technically federal law preempts state law.

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,” 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.”

That fight could be a long one in South Dakota. Noem is showing no signs of backing down.

“Industrial hemp is surrounded by many question marks. It could be reckless to introduce a product that has serious implications on the health and safety of the next generation. I strongly urge the legislature to consider the questions around hemp,” Noem said. “Let’s work together to find the answers to these questions and the solutions to these problems.”

Herzberg is out of jail on bond. His next court appearance is in October. If convicted, Herzberg could spend time in prison.