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Cave Junction questions the legality of medical marijuana dispensaries

GRANTS PASS — A city in the heart of southern Oregon's marijuana-growing country is asking a judge to decide whether the new state law authorizing the sale of medical marijuana through dispensaries complies with the state and U.S. constitutions.

A lawsuit was filed Wednesday in Josephine County Circuit Court by the city of Cave Junction. It names as defendants the state of Oregon, the governor and the Oregon Health Authority.

Cave Junction city attorney Ryan Kirchoff said the city wants to resolve the conflict between federal law, which prohibits the sale of marijuana, and the state law authorizing the sale of medical marijuana. He notes that like many other cities, Cave Junction prohibits issuing a business license to anyone violating federal law.

"It's not about the politics of marijuana," Kirchoff said. "It's about the rule of law and the status of cities and counties and institutions, many of which are home-rule entities that would like to manage this themselves, but are stuck with the inevitable conflict."

Like Cave Junction, many local governments have federal grants and city charters requiring them to comply with federal law and ordinances denying business licenses to anyone violating federal law, Kirchoff said.

The lawsuit argues that federal law pre-empts state law, under the Supremacy Clause of the U.S. Constitution, so the city does not have to follow the state law on marijuana dispensaries. The state law also lacks specific language pre-empting local law, which is required by the state constitution, the lawsuit adds.

"It's a striking conflict for which there is no clear answer than the constitution itself," Kirchoff said.

The Oregon Department of Justice has not seen the lawsuit and had no comment, spokeswoman Kristina Edmunson said.

The law allowing the dispensaries took effect March 1. It gave local governments until today to adopt up to a one-year moratorium on the dispensaries. So far, at least 23 counties and 128 cities have adopted moratoriums. Three more cities, including Medford and Jacksonville, have adopted permanent bans, but their legality is in doubt.

The Cave Junction City Council voted Monday night against adopting a moratorium, preserving its legal standing to sue over the dispensary law.