Josephine County's Attempt To Upend Oregon Cannabis Laws Has Failed

By Dirk VanderHart (OPB)
Sept. 11, 2018 5:23 p.m.

One of Oregon’s largest cannabis-producing counties likely isn’t going to be able to unravel the state’s permissive marijuana laws, after all.

Related: Josephine County Sues Oregon To Invalidate Cannabis Laws


A U.S. magistrate judge has recommended dismissal of a lawsuit Josephine County filed against the state of Oregon, finding the county has no standing to sue the state, and hasn’t proved it’s been injured by laws allowing growth and consumption of recreational and medical cannabis.

The recommendation will now go before a U.S. district judge, who will decide whether to dismiss the case.

The finding caps a case that cannabis-industry attorneys worried could have nationwide effects, even as they scoffed at the legal theories behind it.

In its suit, filed in April, Josephine County argued that Oregon’s marijuana laws — enacted via ballot measures and legislation over nearly two decades — amounted to a violation of the federal Controlled Substances Act. The county essentially asked a judge to invalidate Oregon’s laws.

The suit grew out of Josephine County's struggles to regulate marijuana grows.

In late 2017, the county adopted rules strictly limiting the size of commercial grows on land zoned for rural residential purposes. But growers appealed the decision to the state's Land Use Board of Appeals, which found Josephine County officials hadn't given adequate notice about the zoning change. The county appealed, ultimately unsuccessfully, but in the meantime filed suit against the state of Oregon.


In a recommended order issued August 30, U.S. Magistrate Judge Mark Clarke found the lawsuit shouldn’t move forward. The primary reason: Clarke found an Oregon county can’t sue the state over a state law.

“The Ninth Circuit has long held that a political subdivision of a state lacks standing to challenge a state law in federal court on supremacy grounds,” Clarke wrote.

Even if that weren’t the case, the magistrate judge wrote, the county hadn’t showed that the state’s marijuana laws had prevented it from enacting its regulations. The state’s land use board only told the county it hadn’t followed the correct process to enact them.

“Unless and until the state substantively prohibits the county from enacting a regulatory ordinance, there is no controversy for this court to address,” Clarke wrote.

Finally, the judge found that Josephine County couldn’t show it was in danger of being prosecuted under the federal Controlled Substances Act, which lists cannabis as among the most serious drugs.

Clarke ended on a fairly scathing note.

“The county has provided no evidence to the court that it has attempted to ban any and all marijuana use and production, as would be theoretically required by full compliance with the CSA,” he wrote. “Instead, the county merely seeks to limit the use and production in rural residential zones, while continuing to allow marijuana use and production in other instances. Apparently the county is only worried about aiding and abetting federal felonies on certain kinds of land and not others.”

Wally Hicks, the county counsel for Josephine County and a former state legislator, took the ruling in stride.

“For basically the cost of a $400 filing fee and staff time, Josephine County has obtained invaluable clarity on the subjects of marijuana legalization and ‘Home Rule’ in Oregon,” he wrote in a statement to OPB. “The court’s ruling seems to extend much further than the single topic of marijuana regulation. But this decision could be writing on the wall that the federal government will soon drop marijuana to a lower schedule.”

OPB reporter Conrad Wilson contributed to this report.