Oregon Appeals Court Rejects Restrictions Imposed by County on Marijuana Growers

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By Andrew Selsky

SALEM, Ore. (AP) — The Oregon Court of Appeals rejected an appeal by county commissioners in a prime cannabis-growing part of the state to put back in place their restrictions on commercial marijuana production.

The appeals court’s dismissal without comment Wednesday, June 13, 2018, of the Josephine County commissioners’ case marks the latest step in the struggle between the county’s political leaders to tamp down the proliferating cannabis industry, and growers trying to protect their businesses and investments.

In December, the county commission passed an ordinance banning commercial pot farming on smaller rural residential lots, and reducing larger grow sites.

Ross Day, attorney for the marijuana farmers, said the county’s appeal to the court was frivolous.

“Hopefully the county gets the message that it acted illegally when it adopted the ordinance,” Day said after the Oregon Court of Appeals made its ruling.

The commissioners were appealing a ruling by the state Land Use Board of Appeals (LUBA), which put their restrictions on marijuana production on hold. LUBA said the county had failed to properly notify landowners.

FILE – This June 17, 2016, file photo shows a fence hiding a marijuana grow operation adorned with a psychedelic northwestern American Native motif in Murphy, Ore. On Wednesday, June 13, 2018, the Oregon Court of Appeals rejected an appeal by county commissioners in a prime marijuana-growing part of the state who had been foiled in their attempt to restrict commercial pot production. (Tim Bullard/The Daily Courier via AP, File)

Wally Hicks, attorney for the county, said the ruling is both a setback for the county’s effort to protect property owners.

“Some participants in the marijuana industry have been abundantly clear that they will challenge any meaningful regulation the county introduces. Thus, regardless of which way the Court of Appeals ruled, the matter has always been destined for a return trip to LUBA,” Hicks said in an email.

Members of the commission in the southern Oregon county have called pot farms a nuisance. Voters in the state legalized marijuana with Measure 91 in 2014, prompting a “green rush” as pot entrepreneurs set up shop in the fertile, rainy, mountainous area.

Pete Gendron, a marijuana grower in Josephine County and president of the Oregon SunGrowers’ Guild advocacy group, has pointed out that growers have invested large sums to start operations and said they were shocked when the county tried to restrict them.

One grower had a letter from the county dating back a year or more stating that cannabis cultivation was farm use and was allowed, and he invested a half-million dollars because of those assurances, Gendron said.

In a sign of how bitter the dispute has become, the county commission filed a lawsuit in federal court, contending that the state cannot dictate marijuana regulations over county restrictions because weed remains illegal under the federal Controlled Substances Act.

The pending lawsuit calls on the federal court in Medford to declare that two ballot measures in 1998 and 2014 that legalized medical and recreational marijuana, respectively, are pre-empted by federal law.

Oregon Senior Assistant Attorney General Carla Scott has argued the lawsuit should be dismissed.

“A political subdivision of a state such as Josephine County lacks standing to challenge a state law in federal court on supremacy grounds,” Scott recently wrote in a filing in the case, the Daily Courier newspaper of Grants Pass reported.


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