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SIOUX FALLS, S.D. (KELO) — Since medical marijuana became legal in the state during the summer of 2021, South Dakota’s medical cannabis program has been moving slowly forward. The application period for dispensaries and cultivators in the state opened November 1, and the first medical cards were issued a few weeks later.

However, barring the dispensary operated by the Flandreau Santee Sioux Tribe, there is currently nowhere that card holders can go to purchase medical marijuana in the state, with that not set to change until mid 2022.

Another option is available though, to those who are approved.

Within the state’s guidelines for medical marijuana is a section which allows for the home-cultivation of medical cannabis.

Once approved for home cultivation, patients could theoretically begin growing their own marijuana immediately. But how exactly would one do that?

For some answers, KELOLAND News turned to Liz Tiger, Northern Hills Coordinator for New Approach South Dakota, a group dedicated to cannabis reform in South Dakota.

Tiger asked to clarify that she is an advocate, not an attorney and her advice on home cultivation does not constitute legal advice.

“It’s something that you have to put some time into and really think about,” said Tiger. “There are requirements that you have to have as set by the state for your home facility,” she said.

By state guidelines, a home cultivation project must be in an enclosed, locked area, according to Tiger. “[This] can be a room with a lock on it, it can be a shed that’s locked,” she explained. “Everything’s got to be in an enclosed, locked space.”

Tiger says that part of the application process for home cultivation is showing a diagram of what your home cultivation center will look like. “It’s not like a super extensive requirement. We’re not talking about an engineered drawing — we’re talking about something you can sketch out with a pen and paper.”

Perhaps the biggest advantage to home cultivation is the accessibility. “The glaring advantage for doing home cultivation is that you’ll have access sooner,” said Tiger. “You could have your own product coming out within maybe 3 or 4 months.”

The greatest challenge from a process perspective will likely be the actual act of getting the seeds needed to begin cultivation. As previously mentioned, the only place currently growing and selling marijuana in South Dakota is the operation run by the Flandreau Santee Sioux Tribe, who do not sell seeds or plants at present.

Beyond Flandreau, the only other place seeds are likely to come from is from another state. However, under federal law, the transportation across state lines of cannabis and cannabis products (including seeds) remains illegal.

“It’s all so grey,” says Tiger, discussing the process for how cultivators in states with newly legalized marijuana get their product. “When you’re going from black-market to white-market, there’s a grey area in the middle.”

It’s just one of those murky waters. You don’t want to incriminate anybody; you don’t want to do anything that’s going to get you into trouble.

Liz Tiger

“One way or another, it happens,” said Tiger of the way marijuana appears in a state. “[In] other states you see something that’s called immaculate conception, where basically the state just looks the other for a period of time, and then boom; you have stuff here and you’re in the system.”

The state of South Dakota does not offer advice on how to source your own marijuana plants, though they do offer guidance through the medical card application process, as well as tips for safe storage of product.

Due to the federal illegality of interstate transport of marijuana, there is no official voice who will tell you how to get your own product. In the absence of such a voice, Tiger recommends reaching out to our old friend; the internet.

“If a person was looking at where to start and they just started with a simple Google search for instance — that says ‘how to get cannabis seeds in South Dakota’, companies will pop up,” said Tiger. “They’re going to have information for you to take a look at. That’s about as far as I can really tell anybody at this point.”

Asked about the risk associated with ordering seeds from out of state, Tiger was straight forward. “If you are knowingly ordering seeds that are not hemp seeds, you would be in violation of federal law,” she said.

But again, it happens. “If you look at common practices in other states, you see where this type of transaction happens all the time,” said Tiger. “I don’t hear a lot of people getting in trouble about it, and I would never want to advise someone to do something that could get them in trouble, but I would just say look at what is in play in other states and that’s probably the place to start.”

If these transactions are both common and federal crimes, how can they take place? The answer may trace back to August 29, 2013, with the issuance of the Cole Memorandum.

The Cole memo was a statement issued by then Deputy U.S. Attorney General James M. Cole to all U.S. attorneys. The memo was an update of guidance from the Department of Justice acknowledging the passage of laws relating to medical marijuana in several states.

In simple terms, the memo outlined the fact that several states were legalizing marijuana, and that the view of the DOJ was that the federal government should not expend resources on fighting the regulated use of marijuana in these states, instead focus on what they deemed to be more serious violations of laws regarding marijuana and drug trafficking.

While the Cole memo set guidance for federal prosecutors, it is still just guidance, not a legal limit to authority. Within the memo, it is specified that nothing in the guidelines prohibits prosecution.

Tiger says this lack of clarity in regards to risk and legality is why federal action on marijuana is needed. “It highlights the absolute necessity for the federal government to reexamine its stance,” she said.

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