Josephine County marijuana regulation lawsuit stalls

GRANTS PASS, Ore. – Josephine County commissioners voted unanimously to sue the state of Oregon over marijuana regulations. The county is now going back to the drawing board after a federal judge dismissed the case.

Commissioner Dave DeYoung said, “Basically asking the state a question, asking the federal judge a question: can the state demand of a county that we break federal law?”

An ordinance passed in December prohibits marijuana grows on parcels of land five acres or smaller. On larger parcels, the law limits operations.

But the new restrictions received pushback from over 40 growers who said their private property rights would be violated under the rules.

The Land Use Board of Appeals, or LUBA, got involved and said the county needed to notify about 16,000 landowners about the new rules before they went into effect.

Rather than going back and forth with LUBA through appeals, the county decided to save time and sue the state in April. DeYoung said, “And this thing could have gone on and on so we said you know what let’s just fire all guns and see what sticks.”

On Thursday, U.S Magistrate Judge Mark D. Clark recommended the case be dismissed because Josephine County is a subdivision of the state, meaning it is not allowed to sue the state in federal court.

“If it was in the 10th or another jurisdiction in the state there is a possibility it could have been heard,” DeYoung explained.

The court also ruled the case needs to be dismissed because of lack of controversy, saying, “The State of Oregon has not prohibited Josephine County from enacting the regulations the county wants to enact.

Now, the county is back to square one. Commissioners are talking with growers to see if the current ordinance can be adapted and revised. If it would require too many changes, then commissioners would look at creating a new law. “If we can find some sort of agreement then we are all set to go,” DeYoung said.

Of course, taking it to court isn’t cheap. DeYoung said, “Well I guess you could say it costs a lot of money but if you were going to an attorney to do this it would be expensive. However, we have an attorney on retainer who doesn’t charge by the hour.”

Commissioner DeYoung said it would be hard to say how much the lawsuit cost the county.

County Counsel Wally Hicks handled the case himself. He said, “For basically the cost of a $400.00 filing fee and staff time, Josephine County has obtained invaluable clarity on the subjects of marijuana legalization and ‘Home Rule’ in Oregon.  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.”

According to the county’s 2017-2018 budget, Hicks makes $98,000 annually.

The case now goes to U.S. District Judge, Michael McShane for final approval.

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