Monthly Archives: April 2018

Dual Licenses and the Rohrabacher Amendment Protection

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

Consider this hypothetical: Jane, a Washington state proprietor, holds both a license for the sale of recreational and medical marijuana. She keeps all records in exact compliance for both medical and recreational sales as required by Washington State. The DEA obtains a warrant for Jane’s business, confiscating her product and business records. As the federal trial proceeds, the court orders a McIntosh evidentiary hearing to determine compliance with Washington’s medical marijuana laws that would shut off funding for the DOJ to prosecute Jane. Is Jane protected by the Rohrabacher Amendment?

From one perspective it would appear the Rohrabacher Amendment would protect only those participating in the sale of medical marijuana. However, it’s likely that some of these businesses are operating with dual licenses, especially when you consider the Washington Administrative Code that addresses the medical marijuana endorsement as if it is an add-on to the retail license. Statistics from Washington’s Department of Health show recognition cards, certified consultants, and active medically endorsed stores have continued to increase over the course of a year starting in July, 2016.

So we know medical marijuana is still a thing in Washington’s economy where recreational marijuana has been around for a while, so how do we separate one operation from another? The traceability requirements of the recreational side is pretty intense, tracking from “seed to sale” on the system designated by the Washington State Liquor and Cannabis Board (“WSLCB”). This would lead me to believe that it would be easier to disentangle, at a practical level, any product or sales that are clearly designated for recreational purposes and those that are for medical purposes. But what would that mean for our hypothetical retailer, Jane?

Criminal charges wouldn’t be filed for violation of the different state laws; they would file a charge to cover all of her plants and products. This is a bit of an oversimplification, but I think the point is intact. Let’s further assume Jane’s business is exactly 50% medical and 50% recreational. She’s proven that she’s compliant with the guidelines for medical marijuana, which would trigger the protection from the Rohrabacher Amendment. But that was only 50% of her business, and only 50% of the charges. It is not at all clear how this would get resolved in court, but I can see three main potential outcomes based on Jane’s strict compliance with Washington’s medical marijuana rules:

  • The whole business is not strictly compliant; no protection at all
  • Protects the medical portion; allows prosecution for the recreational
  • The business is all one thing; everything is protected

The closest case on point in the Ninth Circuit was not published, specifically called out as not suitable for precedent. For the moment, this is a big open question. If I were a practitioner in this environment, I would find it difficult to advise a client on what the best course of action would be.

 

Water Access and Marijuana: Federal water access rights and Washington State growers

 By Kristopher Choe, first-year student at the University of Washington School of Law

Water is the driving force of nature. Like all other flora and fauna, the marijuana plant also needs water to thrive. Eight states and the District of Columbia have thus far legalized marijuana for recreational use. Twenty nine states and the District of Columbia legalized marijuana for medical use. Marijuana growers in these states face the issue of where and how to access to water for their plants. The legal question at hand is whether or not federal water can be used to irrigate marijuana.

The short answer: no, growers cannot use federal water sources to irrigate marijuana plants.

Despite the increasing trend of legalization, marijuana remains a Schedule I drug under the Controlled Substances Act. This means that marijuana has: 1) high potential for abuse, 2) no currently accepted medical use, and 3) lack of any accepted safety for use.

Since marijuana is a controlled substance, the United States Bureau of Reclamation subsequently issued a policy statement prohibiting the use of reclamation facilities and water to irrigate marijuana crops in states with “legal” marijuana.

How does this decision affect growers in Washington State?

In Washington, this policy statement greatly affects marijuana growers because it drastically reduces the amount of available water for irrigation purposes. The Bureau of Reclamation controls the supply of up to two-thirds of the state’s irrigated land. A drive over the Cascades reveals the prominence of the federal government’s involvement in Washington’s water ways. Many of the dams erected along the mighty Columbia and its tributaries are managed and regulated by the federal government. (See picture below)

Photo courtesy of U.S Bureau of Reclamation

So, if federal water usage is out of the question, then how and where are licensed growers accessing water?

Washington water rights law states that if you need more than 5,000 gallons of water per day, then a water right permit is needed. This applies to both surface water and groundwater. But that is easier said than done. The process of obtaining a new water right is difficult, to say the least.

However, if a grower needs less than 5,000 gallon of water per day, then a grower may qualify under the “groundwater permit exemption.” This exemption allows growers great latitude to grow marijuana really anywhere there is groundwater available. The groundwater permit exemption allows for the following uses:

1)     Domestic uses of less than 5,000 gallons per day

2)     Industrial uses of less than 5,000 gallons per day

3)     Irrigation of lawn or non commercial garden, a half-acre or less in size

4)     Stock water

Basically, small withdrawals of groundwater are exempt from the permitting process. However, according to the Washington State Department of Ecology, growers should be approach with caution because there still may be local rules or requirements related to a new permit-exempt well. Overall, the exemption is one way for growers to access while the federal government continues its prohibition.

In sum, federal water cannot be used to irrigate marijuana plants for licensed growers. However, in Washington State, growers are able to get around this restriction through either applying for a water right permit, or if the planned use is quite light, then growers could make their own well and extract groundwater.