Josephine County’s federal lawsuit challenging Oregon’s cannabis laws appears doomed after a magistrate judge recommended the case be dismissed.
The Southern Oregon county, struggling to enact limits on cannabis grows on rural residential lots, had argued the state’s cannabis legalization is preempted by the federal prohibition under the Controlled Substances Act.
But counties don’t have the right to sue over state statutes in federal court, a judge said in a recommendation released Friday.
“As a political subdivision of the State of Oregon, Josephine County lacks standing to sue the State under the Supremacy Clause,” Judge Mark D. Clarke wrote, agreeing with the state’s motion to dismiss. “There are no exceptions to this rule within the Ninth Circuit.”
Even if it did have standing, Josephine County failed to demonstrate that the state had actually stopped it from enacting regulations, Clarke wrote.
Clarke noted that the county’s ordinance restricting grows on rural residential properties — challenged by growers — hadn’t been overturned, but had been put on hold because the county failed to properly notify property owners. And he pointed out that neighboring Jackson County’s outright ban on cannabis grows on rural residential properties had been upheld.
Josephine County has 14 days to file objections to the judge’s Report and Recommendation, which goes to a District Court judge for approval.
Writing on Cannalawblog.com on Monday, Portland cannabis attorney Vincent Sliwoski said Judge Clarke’s recommendation is “almost certain” to go through. Appeals would likely be fruitless, Sliwoski opined.
Josephine County has long been one of the state’s leading pot-producing counties. With legalization in 2014 and no local restrictions in place, commercial growers flocked to the county’s rural residential areas.
County commissioners began to hear complaints from residents that their quiet country lives had been turned upside down by grows that, in their view, were stinky, noisy and brought in the wrong element.
In December, the commissioners adopted an ordinance that bans commercial cannabis production on rural residential lots five acres and under. It also limits grows on rural residential parcels bigger than that to one-eighth the size allowed under Oregon law, while introducing 100-foot setbacks for grows, greenhouses and other structures.
Licensed recreational growers challenged the ordinance on a number of legal grounds. Moreover, they said, the county was aiming at the wrong target with the ordinance, noting the nearly 2,500 medical grows and untold illegal operations in the county were unlikely to face enforcement.