Naysayers Cannot Sue Oregon's Largest Cannabis Producing County, says Judge

U.S. magistrate judge recommends dismissal of lawsuit filed by Josephine County, provoking collective sigh of relief

These days with lawsuits stacking up against and among the cannabis industry, there was a welcome victory in Oregon recently.

A U.S. magistrate judge recommended the dismissal of a lawsuit filed by Josephine County - one of Oregon’s largest cannabis-producing counties - against the state of Oregon.

The judge ruled that Josephine County has no standing to sue the state and did not prove that Oregon’s laws permitting growing and consuming cannabis have injured the county or its inhabitants.

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

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

Filed in April, Josephine County’s lawsuit 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 cannabis cultivation.

In late 2017, the county adopted rules that limited 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 unsuccessfully appealed then, in the meantime, filed suit against the state of Oregon.

The recommended order issued by U.S. Magistrate Judge Mark Clarke found the lawsuit should not move forward.

The main reason? Judge Clarke found that a county cannot sue the state over a state law. Whew.

“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.”

The Judge also found that Josephine County could not show it was in danger of being prosecuted under the federal Controlled Substances Act (CSA).

“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,” wrote Judge Clark.

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