If Medford Police Chief Tim George wants to enforce federal drug laws, he doesn't have to wait for House Bill 3460 to come into effect. No, he can start right now by arresting all the medical marijuana users living in Medford and putting some teeth into his boast.
But he doesn't do that because it would cost him and the county a lot of money to prosecute these folks and that would not be popular. Anyway, striking an inexpensive anti-medical marijuana pose by drawing a clear line in the quicksand is all he wants to do so he can enhance his anti-marijuana credentials.
However, while the question of whether HB 3460 allows for local prohibition of medical marijuana facilities plays out to its inevitable conclusion, leaving Medford on the losing side, the good city councilors might want to peer over their shoulders at another new law that has an even more direct approach to squelching their anti-medical marijuana shenanigans. That law is Senate Bill 863.
If they have heard of it, it has most likely been in the context that it prohibits local governments from outlawing GMO crops. (There is one small exemption from the coverage of this law, covering only a specific initiative up for the ballot in Jackson County, should it pass. That exemption does not excuse any local government, including those in Jackson County). It bans GMO regulations but never mentions GMOs in any form or context in doing so. No, what SB 863 does is prohibit local regulations which inhibit or prevent the use of various types seeds, agricultural seed, vegetable seed, nursery seed and flower seed. The law defines "nursery seed" as any propagant of "nursery stock" as defined in ORS 571.005.
That paragraph defines "nursery stock" as "including all botanically classified plants or any part thereof." So with that definition in mind, here are the two active sentences from SB 863:
"Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area, or quarantine, to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed. The prohibition imposed by this subsection includes but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.
There it is, a wonder of statutory brevity which nonetheless carries astonishing weight. So it seems that according to SB 863, if marijuana, cannabis sativa (L), qualifies as a "botanically classified plant" then no local government can regulate any aspect of it. So, does cannabis sativa (L) qualify as a "botanically classified plant?" Of course it does and the (L) at the end of the name is there because Linnaeus, the inventor of the binomial nomenclature method of plant classification, named that plant in his first classification! So obviously it is a "botanically classified plant" and neither Medford, which tried to ban sales of it by amending a local code, nor any other local government can regulate anything to do with it or, for that matter, any other plant! That regulation is totally the domain of the state.
Now with the statutory realities so clear, it would seem logical that the city councilors of Medford, after reviewing their position versus the two laws involved with regulating marijuana in local jurisdictions and contemplating deeply and fully the depths of legal quicksand that they are about to lead their fellow citizens into should they maintain their stance, would come quickly to the conclusion that this fight is lost already and get back to the pressing issues related to running a city.
It would seem logical that Medford would do that, but there seems little likelihood that the city will come to its senses. It just may well be that there has been sufficient investment of energy put into emotionally based posing and grandstanding for the chance of the rational approach even belatedly being brought into play to succeed. No, it may well be that the only way the city can be brought to its senses is for the city to be educated in a court of law with all of the expense and painful delay for needy patients that process will entail.
It may be that is how it will have to go, but intelligent and caring Oregonians hope not.
Laird Funk lives in Williams and serves on the Oregon Health Authority's Advisory Committee on Medical Marijuana.