OR: Josephine Marijuana Lawsuit Seems Excessive

Photo Credit: Christopher Chung

Josephine County commissioners, frustrated with land-use conflicts triggered by the state’s legalization of marijuana, have decided the answer is to sue the state in federal court, seeking to overturn the entire marijuana industry, medical as well as recreational, on the grounds that the drug is still illegal under federal law. In so doing, they are abdicating their responsibility to solve land-use issues on their own, and jeopardizing an industry that is already providing a source of revenue for the cash-strapped county.

Faced with angry residents upset over marijuana farms cropping up on rural residential land, the commissioners outlawed commercial cannabis production on rural residential lots of 5 acres or less. But the state Land Use Board of Appeals blocked that move, saying the county had not properly notified landowners.

Now the county has gone to court, asking the U.S. District Court in Medford to declare that the medical marijuana law approved by voters in 1998 and the recreational legalization measure passed in 2014 are pre-empted by federal law, which still classifies marijuana as a Schedule 1 controlled substance, illegal to possess or sell, with a high potential for abuse, no legitimate medical use and severe safety concerns.

Oregon has allowed the medical use of marijuana for 20 years, and recreational use is now legal here, as well as in eight other states and the District of Columbia. More states are considering legalization measures.

No one would argue that Oregon’s rollout of legal recreational marijuana has been smooth. Conflicts immediately sprouted as would-be cannabis farmers swooped in, especially in Southern Oregon, where the climate is especially hospitable to outdoor growing. Conflicts quickly developed over water, odors and unsightly fencing.

Counties were unprepared for the onslaught. Jackson County had something of an advantage because its existing land-use laws prohibited commercial agriculture in rural residential zones, but Josephine County had no such restriction.

Despite the conflict with federal law, the U.S. Justice Department said it would respect state laws as long as states prevented marijuana from entering the black market. That has been a problem in Oregon, despite protestations to the contrary. Attorney General Jeff Sessions, no fan of marijuana, has given federal prosecutors more freedom to take action in states that have legalized the drug.

Josephine County’s action is unlikely to solve its problems anytime soon. Federal litigation is a lengthy process, and it could be years before the case is resolved. In the meantime, growers will continue to produce crops.

County officials could have worked to enact reasonable restrictions that would pass muster with the state while preserving a new industry that has the potential to provide tax revenue to a county that desperately needs it, not to mention jobs and the benefit of money invested in land and buildings related to the marijuana industry. Instead, the county is taking aim at the entire system.