State says county's lawsuit over marijuana rules should be tossed
By Shaun Hall of the Daily Courier
The Oregon Attorney General's Office has fired back at Josephine County's attempt to have a federal judge order the state to buzz off when it comes to regulating marijuana.
In a filing in the case last week, Oregon Senior Assistant Attorney General Carla Scott argued the county's case should be dismissed.
"It is well established in the Ninth Circuit that a political subdivision of a state such as Josephine County lacks standing to challenge a state law in federal court on supremacy grounds," Scott argued. "All of the claims in the complaint against the State challenge state laws on federal supremacy grounds. The complaint must be dismissed for that reason alone."
County Counsel Wally Hicks said he anticipated the state's objections, and plans to file a reply no later than Wednesday.
The county's lawsuit stemmed from a ruling earlier this year by the state Land Use Board of Appeals that put the county's new restrictions on marijuana growing on hold.
The county Board of Commissioners adopted new restrictions in December on marijuana farming in rural residential zones, after receiving neighbor complaints about the proliferation of pot farms. A consortium of marijuana growers then appealed the new restrictions to LUBA.
LUBA ruled the county had failed to properly notify land owners about the restrictions. The county appealed that ruling to the Oregon Court of Appeals, then doubled down and filed the federal lawsuit.
In its lawsuit, filed in U.S. District Court in Medford, the county argues that since possession of marijuana is illegal under federal law, the state doesn't have authority to bar the county from enacting restrictions on marijuana farming.
The county argued it tried to apply "reasonable time, place and manner rules" to the production of marijuana in rural residential zones, but that the state rebuffed those efforts.
The county is asking the court to declare that the ballot measure creating the state's medical marijuana program in 1998 and the 2014 ballot measure that legalized recreational marijuana are pre-empted by the federal Controlled Substances Act.
The county is not trying to void the state's marijuana laws. Instead, it is seeking a specific ruling that local governments may limit activities prohibited under the act, "irrespective of conflicting state law."
In a related matter, Scott stated in her filing that the county's ordinance outlining its restrictions might indeed be legal.
"The only thing presently preventing Josephine County from enacting its proposed ordinance is the LUBA decision finding that the County failed to supply proper notice to affected landowners," she wrote.