science environment

Josephine County Sues Oregon To Invalidate Cannabis Laws

By Conrad Wilson (OPB) and Dirk VanderHart (OPB)
Portland, Ore. April 4, 2018 4:14 p.m.

UPDATE (2:51 p.m. PT) — Josephine County is suing the state over Oregon's laws allowing recreational and medical cannabis.


The lawsuit, filed Tuesday in U.S. District Court in Medford, is an attempt by one of the state's largest marijuana-producing counties to win power to regulate cannabis production as it struggles with limited public safety resources. But the case could have far wider implications.

The county is essentially asking a federal judge to delegitimize Oregon's cannabis laws — two ballot measures approved by voters and regulatory legislation passed by state lawmakers — because they conflict with stricter federal drug laws.

The federal government regulates marijuana through the Controlled Substance Act, which lists cannabis as a schedule 1 drug and thus illegal to possess, distribute or grow.

A spokeswoman for Oregon Attorney General Ellen Rosenblum, who is named as a defendant in the suit, says her office is still reviewing the lawsuit and won't comment on pending litigation. But the attorney general's office says Rosenblum "will defend the state laws of Oregon related to legal marijuana."

The lawsuit is the latest step in an ongoing fight over cannabis regulation in Josephine County. Last year, officials in the southern Oregon county enacted a law clamping down on marijuana growing operations.

The ordinance outlawed commercial growing operations on plots of land that were five acres or less and zoned for rural or residential purposes. For larger parcels, the law set limits on the size of growing operations well below what's allowed under state law.

A group of cannabis growers appealed the ordinance, winning a ruling from state land use officials that said the process for passing the law was improper.

Josephine County officials are appealing that decision. In the meantime, they decided to sue.

"This was drafted and filed in anger," said Will Patterson, a Portland-based cannabis industry attorney who is not involved in the case. "This is a massive overcorrection from what they really want."


Josephine County officials have another view. Wally Hicks, the county's attorney, said the county is simply trying to regulate cannabis "in the way the that the people of the county and the governing body of the county have expressed that they would like to regulate it." 

In May 2017, voters in the county approved a non-binding ballot question about regulating cannabis production with roughly 64 percent of the vote. 

"That's what's really at issue here," Hicks said. "We're asking the court to declare whether the state lawfully has that ability to limit those options."

In fact, the suit could have far larger implications, says Patterson, who called it the "nuclear option." If all of the county's arguments are successful, he says, laws allowing cannabis in other states could be affected. Recreational marijuana is legal in the District of Columbia and at least eight states. Medical cannabis is legal in 29 states.

"This is Josephine County asking a federal court to terminate legal recreational and medical regimes," Patterson said.

The suit is playing out in one of Oregon's marijuana hot spots — what Patterson called "the bread basket of cannabis."

According to state records, Josephine County has more than 125 licensed recreational cannabis growers — and an untold number of medical grow operations. Since voters approved recreational cannabis use in 2014, the county has received 390 license applications for cannabis-related businesses, trailing just three other counties.

Hicks says that's part of the problem.

“Josephine County, of course, for many years has been a place known for marijuana production,” he said. But after Oregon voters passed Measure 91 in 2014, making recreational marijuana legal, Hicks said the county’s industry “blossomed, so to speak."

"It ultimately became clear that neighbor disputes were not getting any less, but were really increasing,” Hicks said. “It was something the county shouldn’t and couldn’t ignore. So they didn’t.”

Unsurprisingly, members of the cannabis industry are decrying the lawsuit. Anthony Johnson, the chief petitioner behind Measure 91, says he thinks the county's claims will ultimately be fruitless.

"It is a shame that Josephine County commissioners are wasting limited resources and taxpayer dollars on a lengthy federal court case when Oregon has instituted reasonable regulations that deter the illegal market while bringing jobs and revenue to our state," Johnson said.

Court challenges like this aren't unheard of. In 2014, the city of Cave Junction sued the state over medical cannabis dispensaries using some of the same arguments but ultimately dropped the matter.