As of Wednesday, December 16, 2015
During the Columbia River Gorge Commission’s (CRGC) meeting Tuesday, Dec. 8, commissioners requested staff to prepare a memo providing guidance for the six counties of the Columbia River Gorge National Scenic Area in planning for the implementation of Oregon’s Measure 91, and Washington Initiative 502.
The issue presented to CRGC is how the Oregon measure will be implemented in the Columbia River Gorge National Scenic Area, since using marijuana is still considered an offense under Federal law.
CRGC staff recommended to the Commission in April 2016 that Washington’s I-502 regarding marijuana reform not be applicable in the National Scenic Area (NSA), specifically relating to the regulation of production, processing, and sales of marijuana. At that time, the Commission did not take action.
Now the Commission faces the same problem with Oregon’s Measure 91. Wasco County planning director Angie Brewer, and Hood River County planning director John Roberts, approached the CRGC for guidance concerning handling applications for production, processing, and retail of marijuana in the NSA.
“The reason we’re asking for direction is we have a lot of folks who are interested in growing, or retailing, or processing in some shape or form particularly in areas immediately around urban areas,” explained Brewer, “and we’re going to have to be able to give them some direction.”
Oregon counties, such as Multnomah, have already begun drafting ordinances for implementing measure 91, which legalized recreational use of marijuana based on regulation and taxation determined by the Oregon Liquor Control Commission.
During the meeting the Commission was presented with legal reasons provided by CRGC counsel Jeffrey Litwak, informing the Commission of it’s inability to interpret the National Scenic Area Act and Management Plan to allow marijuana land uses within the NSA.
“Right now we’re in the process of amending our ordinances outside of the scenic area to regulate the time and place or manner of marijuana related businesses,” said Brewer. “We’d like to be able to provide that same level of protection outside of the larger areas.”
“I think one thing that is really key is that the state has come forward saying that this is agriculture, the production of it [marijuana] is agriculture,” said Brewer, “and without any objection from the commission about how that’s implemented in the scenic area, we’d like to be consistent county wide in how we direct our residents.”
At this time, neither Washington’s I-502 or Oregon’s M-91 have text applying its applicability of implementation in the Columbia River Gorge National Scenic Area. The NSA authorities do not regulate personal use of any substance or product; the issue lies solely with the land use and the production and processing of marijuana on NSA land.
“Another issue that I think we didn’t anticipate until we started getting into the nitty-gritty details is you’re likely to see these things come through: application for home occupations and cottage industries,” explained Brewer. “So it won’t be limited to commercial designations.”
Courts in Oregon and Washington recognize the Commission receives its authority from federal law, since Congress authorized the CRGC. This means the Commission’s rules are treated as mandated or required by federal law, which courts recognize as preempting conflicting state laws.
“We would like some direction, without it we’re left with a non-answer, and that’s not really fair to our residents,” said Brewer. “It’s not really a good answer we’d like to be giving folks. Right now you’ve got six counties all coming at it from different angles to deal with similar issues.”
The Washington State Liquor and Cannabis board’s regulations for marijuana state the board won’t approve marijuana licenses for a location on federal land. But the regulation fails to define federal land. Oregon’s measure has similar text prohibiting approval of licenses and location of licensed premises on federal property, but fails to define federal property.
“So I think this is complex enough that it really does warrant an in depth look at what the impacts might be across the gorge,” said Brewer. “Also it will help us provide a level of service we’d like to provide, not only to you [the Columbia River Gorge Commission] in implementing the management plan effectively, but to our residents in the counties across the scenic area.”
The Oregon Liquor Control Commission will begin accepting applications for marijuana business licenses on Jan. 4, 2016, and will begin requesting land use compatibility statements from the counties soon after. The memo that was requested will be prepared this week, and will be made available to the public and counties at that time.