Regular readers know that we are in the midst of presenting a 50-state series analyzing how each state treats hemp-derived cannabidiol (“Hemp CBD”). Recently we covered Idaho, which we neatly summarized as “probably the worst state in the country to get caught with hemp.” The article explains why this is so in detail. Among the reasons is that last winter the Idaho State Police seized a shipment of 13,000 pounds of hemp which was being transported across Idaho from Oregon to Colorado. (See here.) The case has received considerable attention from the press and the hemp industry. Indeed, the American Trade Association of Cannabis and Hemp filed amicus briefs in both the federal district court and the Ninth Circuit in support of the owner of the hemp.
The Ninth Circuit sends hemp owner to Idaho state court on the basis of the Younger abstention doctrine.
The seizure led to a federal lawsuit by the owner of the seized load. Big Sky Scientific, LLC v. Jan M. Bennetts, No. 1:19-cv-00040-REB (D. Idaho). Big Sky sought a declaration that (i) the cargo is industrial hemp under provisions of the 2018 Farm Bill, (ii) hemp is not a controlled substance under federal law, and (iii) Idaho cannot interfere with the interstate transportation of hemp.
Big Sky also quickly moved for a preliminary injunction asking the federal court to compel the Idaho State Police (“ISP”) to return the hemp. Big Sky contended the cargo was deteriorating and losing its value as it sat in ISP’s possession. Meanwhile, ISP filed a state-court complaint in rem for forfeiture of the hemp under Idaho state law.
In considering the motion, the federal district court directed the parties to address “whether the Court has jurisdictional authority to compel the relinquishment of property seized in connection with a state criminal case.” ISP drew upon the Younger abstention doctrine to argue the federal court lacked jurisdiction and ought to abstain from exercising jurisdiction over Big Sky’s request for equitable relief.
The federal court denied the motion for a preliminary injunction and ruled that it need not decide the abstention question. Big Sky appealed the denial to the Ninth Circuit, wherein ISP argued the district court abused its discretion by not abstaining pursuant to Younger.
In a short, unpublished opinion issued on September 4, 2019, the Ninth Circuit agreed with ISP and reversed the district court’s decision not to apply Younger abstention. The decision was based, in part, on ISP’s representation at oral argument that (i) Idaho will immediately move to lift the stay in the in rem forfeiture action, and (ii) the assumption that the Idaho state court would proceed expeditiously with the in rem action, including Big Sky’s challenge to Idaho’s interpretation of the 2018 Farm Bill.
In plain terms: the Ninth Circuit ruled that the federal district court should refrain from exercising jurisdiction over Big Sky’s case because doing so may interfere with the ongoing proceedings in Idaho state court. (Feel free to email me for a copy of the opinion.)
What is Younger abstention?
The Younger abstention doctrine is named after the Supreme Court’s 1971 decision in Younger v. Harris which held that federal courts may not enjoin state court criminal proceedings. At heart the Younger abstention doctrine arises from our system of federalism and its separation of powers. States are independent sovereigns (as are Indian tribes in many respects) and most abstention doctrines proceed from this understanding. Since 1971, federal courts have applied the principles of Younger to proceedings far beyond the criminal context. Generally speaking, the doctrine operates to prevent federal courts from enjoining pending state court proceedings.
The doctrine is controversial in several respects for reasons we won’t get into here. (See Federal Jurisdiction by Erwin Chemerinsky for a thorough analysis). Other abstention doctrines include Colorado River abstention – which is concerned with avoiding duplicative litigation; the Rooker-Feldman doctrine – which concerns federal court review of state court decisions; Pullman abstention – which concerns refraining from deciding questions based on unclear state law; and Burford abstention – which concerns deferring review of complex state administrative procedures.
For now, I’ll briefly explain the elements of Younger abstention and turn to the implications of the Ninth Circuit’s decision. As the Court explained, “Younger abstention is appropriate when (1) there is an ongoing state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial proceeding.”
In Big Sky, the Ninth Circuit found these elements met because of the pending in rem forfeiture proceeding in Idaho state court in which Big Sky may raise its federal claims. Although the state courts had stayed that action, ISP’s promise to move to lift that stay, and the “assumption” the state court would proceed to resolve that action expeditiously and permit Big Sky to raise its constitutional challenges led the Ninth Circuit to conclude Younger abstention was appropriate.
What are the implications of the Ninth Circuit’s ruling in Big Sky for shipping Hemp-CBD across state lines?
The Ninth Circuit’s decision has several immediate consequences relevant to anyone operating in the Hemp-CBD marketplace:
1) Big Sky (and others) who have Hemp-CBD shipments seized in Idaho may ending up winding their way through state court and the state court appellate process (this is less than ideal);
2) Other states that take a dim view of hemp (we are looking at you, South Dakota) may see this as a template for seizing Hemp-CBD shipments and keeping related proceedings out of federal court (though South Dakota is in the Eighth Circuit so not bound to follow the Ninth);
3) Trucking and shipping companies may decline to offer Hemp-CBD shipping services because of the potential of seizure;
4) The risk and costs of shipping Hemp-CBD ought to be addressed in your contracts – as we have said before – and you should consider spelling shipping routes to lessen the risk of seizure;
5) Ensure that your Hemp-CBD shipments and shippers have the proper manifests and other chain-of-custody documents; and
6) Finally, if one of your Hemp-CBD shipments is seized by law enforcement, act quickly with your litigation attorneys to commence a federal court action and be prepared to make sophisticated jurisdictional arguments.
For now, it may be best to stay away from Idaho.
