Josephine County responded aggressively to a recent adverse decision by the Oregon Land Use Board of Appeals (LUBA), bringing suit against the State of Oregon to invalidate the state’s marijuana laws. The complaint, filed April 3, 2018, argues that the federal Controlled Substances Act (CSA) preempts Oregon’s recreational and medical marijuana schemes.
The LUBA decision remanded a Josephine County ordinance that would have restricted marijuana production on significant portions of land in the county. The decision was made on procedural grounds and left open several substantive challenges, one of which dealt with the county’s authority (or lack thereof) to retroactively prohibit marijuana production. The county seeks to resolve this issue outside of LUBA by addressing ORS 215.130(5) — which protects existing land uses that were “lawful” when started — in its lawsuit. The county asserts that ORS 215.130(5) does not apply to marijuana production, which is prohibited by the CSA.
The county asserts that the state requires it to “allow,” “facilitate,” and “accommodate” marijuana production in violation of the CSA. Measure 91, which legalized recreational marijuana in Oregon, allowed local jurisdictions to opt-out so long as 55 percent or more of local voters voted the measure down. Voters in Josephine County voted no by a very narrow margin (17,313 to 17,311), making the county unable to opt-out.
The county’s preemption arguments could have a broad impact, implicating both recreational and marijuana legalization schemes throughout the nation.
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