A recommendation from the South Dakota Legislative subcommittee comes from a group of lawmakers working to draft rules to limit provisions of Initiated Measure 26 (IM26), a ballot measure to legalize medical marijuana that was passed by nearly 70 percent of South Dakota voters in the November 2020 general election.

The announcement came from a subgroup of the South Dakota Marijuana Summer Study Committee, a panel of lawmakers that was assembled to make changes to IM 26. In addition to eliminating home cultivation, the panel is considering proposals including repealing legal protections for marijuana businesses and their attorneys and another that would allow local governments to prohibit cannabis businesses to operate in their jurisdictions.

“We’re not here to say no to marijuana,” said Republican state Representative Carl Perry. “What we’re here doing is making sure it’s good [policy].”

South Dakota Voters Approved Medical Marijuana in November

Following the passage of IM 26 and a separate ballot measure to legalize cannabis for use by adults, South Dakota Governor Kristi Noem announced that implementing the medical marijuana initiative would be delayed. The delay came despite provisions of state law that approved ballot measures take effect on July 1 of the year following passage, which would have been this year.

“We are working diligently to get IM 26 implemented safely and correctly,” Noem said in a statement released by her office. “The feasibility of getting this program up and running well will take additional time. I am thankful to our legislative leaders for helping make sure that we do this right.”

The delay of IM 26 was approved by Republican lawmakers including House Majority Leader Kent Peterson, who argued that more time was needed to devise a workable plan to implement the measure.

“There is no doubt that IM 26 passed in South Dakota, and it is fully our intention to honor the will of the voters,” said Peterson in the statement from Noem’s office. “Based upon the experiences of other states, we know that it takes time to start implementing a safe and workable program. We will get the job done.”

Lawmakers who support repealing home cannabis cultivation fear that marijuana grown by patients will be diverted to the illicit market. Representative Fred Deutsch, another Republican, also cited the possibility that home grows could be a target of thieves.

“It’s the relationship between home grow and the black market,” he said, citing testimony heard during the committee’s information gathering process. “Home grow is probably the key ingredient with the proliferation of crime and the proliferation of the black market.”

Other lawmakers noted that at least a dozen states with legal medical marijuana do not allow patients to grow their own medicine. Republican state Rep. Rhonda Milstead said that regulatory officials in Colorado recommended home cultivation not be allowed.

“Why are we not listening to the experience?” Milstead asked.

Not all lawmakers on the subgroup, however, are in favor of the changes proposed by the panel. Representative Taylor Rehfeldt, also a Republican, said that she can not support amendments that reduce patient access or fail to comply with the intent of voters. However, she supports allowing cities and counties to prohibit hosting cannabis businesses.

“I’ll always try to maintain the intent of IM 26 while considering the needs of Sioux Falls and the entire state,” Rehfledt said. “I voted for local control, partly because I know there are rural communities who did not pass medical marijuana with a majority and I’m trying to consider their needs.”

Republican Senator Mike Rohl was opposed to delaying the implementation of IM 26. He does not believe that attempts by lawmakers to ban home cultivation or allow local governments to prohibit marijuana companies will succeed.

“I don’t think they have the votes to get anything like that done in the long run,” Rohl said.

Adult-Use Measure Also Under Attack

Noem is also involved in an effort to overturn the voters’ approval of Amendment A, a proposed amendment to the South Dakota Constitution that would legalize and regulate recreational marijuana for adults. A lawsuit supported by the governor has been filed against the measure, which was approved by 54 percent of voters in the 2020 general election. In April, a South Dakota circuit court judge ruled that the measure is unconstitutional and nullified the amendment.

The case was then appealed to South Dakota’s Supreme Court, which heard arguments from both sides of the litigation in April. Representative Hugh Bartels, the Republican lawmaker who chairs a subcommittee studying adult-use cannabis legislation, said that the court is still deciding whether Measure A violates the state constitution.

“How long that’s going to take we don’t know. We just have to wait,” Bartels said about the Supreme Court case. “We’re kind of treading water until then.”

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