The always-complicated relationship between the federal government and California officials over the issue of medical marijuana became even more strained last October when the four U.S. Attorneys for the state announced an enhanced enforcement strategy designed to crack down on what they see as abuses of California's legalization of the drug for medical purposes. Legal threats by the government seem to have had the desired effect, with new reports of dispensaries shutting down coming every month.
Perhaps no federal action has angered and mystified marijuana advocates more than the federal raid on Northstone Organics, a Redwood Valley marijuana dispensary and cultivator that had worked closely with local law enforcement and local officials to come into compliance with a unique county permitting program.
The program, which operates under the supervision of the sheriff's department, has drawn national media attention. It has also been held up by marijuana advocates as an example of the kind of government involvement that could bring new legitimacy to the marijuana industry.
Last week, sources told Michael Montgomery, who has been covering this story for several years, that Melinda Haag, the US Attorney for California's Northern District, threatened to sue Mendocino County over its marijuana program. The sources said Haag gave the county two weeks to respond and take action.
The county's legal counsel has since advised the Board of Supervisors to end the program. Supervisors are scheduled to vote on the counsel's recommendations next Tuesday, and it's widely expected that they will abandon the model program.
Recently, Michael Montgomery spoke with two officials who have starkly different views of the Mendocino's marijuana program: John McCowen, the chairman of the Mendocino Board of Supervisors who helped design the ordinance; and Tommy LaNier, who directs the White House-funded National Marijuana Initiative and opposes legalized marijuana, for medical or any other purposes.
First, here's the interview with LaNier, the federal official and marijuana opponent:
It seems that the program is being shutdown. My first question is just your response to what has happened.
You have to go back to October when the four US Attorneys did the press conference. This is something that was inevitable. Entities, whether a city or county or those involved in the illegal distribution of marijuana through the so-called dispensary program, knew this was going to come. So the counties had fair warning.
There are lots of places in California the Feds could focus on since any marijuana cultivation or distribution is illegal under the Controlled Substances Act. Why do you think they took this step to essentially intervene in Mendocino County?
Well, each of the US attorneys are taking action within their respective judicial district. Melinda Haag is dealing with a number of things in her area, and one of those areas she is taking action against is Mendocino.
The other three US attorneys are also doing the same thing with different counties and cities and have also advised those places where they’re trying to regulate marijuana-- which is illegal under the Control Substances Act —- they cannot do that. This is just another process; Mendocino was on the list to do it in the first part of January.
Moving forward, now that the feds to some degree have revealed their hand in Mendocino in terms of saying that a local jurisdiction cannot permit or authorize marijuana cultivation, what should we expect in places like San Francisco and Oakland, which also have permit programs for dispensaries?
I can't speak directly for the U.S Attorneys because they're working on individual cases, but I would think it would send a message to those cities that see what's going on in Mendocino and that they're most likely going to be advised that they're in violation of the law if they haven't already.
Those discussions I'm sure are going to continue throughout the state, within the various districts. U.S. Attorneys are going to act based on the resources available but those places that really have developed large programs, like in Mendocino, are going to be probably a priority on the list.
Would you say that includes cities in the Bay Area that are permitting dispensaries?
I would say, yeah. I would assume that that's going to include any of the dispensaries as well. One of the things that the U.S. Attorneys stated at the briefing included those people that had dispensaries and/or property owners that facilitated the ability for dispensaries to operate.
So you're not only looking at entities like cities and counties, but you're looking at private property owners and dispensary owners. They're all included in this thing. When you look at the Controlled Substances Act, if you produce, if you distribute, if you sell, you're in violation of federal law.
You run a national organization. Does this help us understand what might happen in states like Colorado that have also set up pretty elaborate state-wide permitting programs? Or is this a California-specific development?
No, I don't think it's a California development. When you look at main Justice (the federal Justice Department), they're looking at the entire program with the 15 states that have (passed laws allowing) marijuana for medicinal use.
Colorado is also one of those place that's being looked at. So I would hope that the U.S. Attorney over there is also going to direct his attention to those places where they are permitting, and I think that is going to happen as well.
Now, here's an edited transcript of the interview with Supervisor McCowen, who sees no sense in the federal actions in Mendocino.
As a city council member you supported a ban on outdoor marijuana cultivation but your views evolved over time. Talk about that…
My interest has always been in protecting public safety. Prior to the city of Ukiah adopting a ban on outdoor cultivation, people were filling up their residential backyards with scores of plants that created significance nuisance and public safety impacts.
So I think a ban on outdoor growing in a residential area was absolutely the right approach.
I also helped pass a countywide initiative that put Mendocino County back in line with state limits, an effort to control what had become an out-of-control situation. That narrowly passed, was held up in the courts, and meanwhile people continued to come into the area from outside of California, specifically to grow as much marijuana as they could and make as much money as they could. Our efforts up to that time were futile.
So the amendments I supported included a balance of increased restrictions, such as setbacks from property lines, from occupied houses, a ban on growing within sight of the public right of way, balanced with an opportunity for people to apply for a permit from the sheriff to grow up to 99 plants per parcel, subject to compliance with a long list of conditions and inspection by the sheriff.
I think that resulted in successfully balancing the public safety impacts and environmental protection against the right of medical marijuana patients under California law to have safe access to medical marijuana. It's been a very successful regulatory program.
You've said in the past that one aim of the program was to create a bright line between illegal marijuana growing and legal medical marijuana growing, in order to help law enforcement.
Absolutely. There's so much marijuana being grown out here, and no one has any illusion that we could eradicate it all if we wanted to. The best estimates are that the authorities, federal state and local combined, might be able to eradicate about 10% of the illegal marijuana grown every year.
So it just made sense to me to try to come up with a program that would identify a group of people who were absolutely legal in terms of state and local law. So here we had people who were willing to step forward and comply with a long list of conditions, including that they are paying all their payroll taxes like any other business and they're being inspected by the sheriff.
Then you have other people outside of that system who are more of a question mark, and some of them are clearly out of bounds. But by creating this separation between what is clearly legal and what is more questionable, it allows law enforcement to focus their efforts on the people who are actually creating the problem.
Were you surprised by the decision of the US Attorney's office to essentially intervene by threatening the county with litigation over its medical marijuana permit program?
No I wasn't really surprised. I think we've been aware for some time now that our program has been on the radar of the federal authorities. A lot of people involved in federal narcotics enforcement have a zero tolerance viewpoint on marijuana. They think it's all illegal; they think medical marijuana is a sham. And they have no respect for the ability of states to determine their own position on medical marijuana.
Do you see the federal action vis-à-vis Mendocino as interference in the county's political decision-making process?
I absolutely do. The government that is closest to the people is more in tune with the people and what our local needs are. What might work in Iowa might be very different from what works in Mendocino County.
For example, we had a very successful local, state, and federal program to eradicate marijuana in Mendocino national forest last year. I personally very much welcomed the participation of the federal authorities. They eradicated over 600,000 plants, took out miles of irrigation lines, dozens of illegal dams, tons of garbage.
I think there were over 130 arrests, one prosecution. So who are we kidding? The federal government is making no serious effort to prosecute the people who are illegally cultivating marijuana for the black market and who are harming the environment, and instead they're trying to knock down a program that provides for the cultivation of medical marijuana in compliance with state and local law, protection of the environment, protection of neighborhood impacts.
If they really want to go after all the marijuana they think is illegal – great. And after they clean up the trespass growers in the national forest who are polluting and destroying the environment, then let's talk about people who are complying with our local program.
But otherwise, if you're not going to provide the resources to solve the problem, then don't interfere with our efforts on the local level to bring order out of chaos.
Because prior to this program, it was like the Wild West. We had people flooding in here from all over the nation and the world, focused on growing as much marijuana as they could without regard to the environment or the local communities. There was complete polarization between the marijuana growers, whether it was on a small scale level or the out of control people…and it was very divisive within the community. It took up a lot of time at the local government level. The courts were clogged; there was no clear resolution to the cases, there was no clear dividing line as to what was legal and what wasn't illegal, and what we should spend our resources on and what not.
So the program we put in place went a long way in addressing those problems. My concern is that the federal action, whatever their intention, is going to have the effect of driving medical marijuana back underground, which will make it more dangerous, more profitable, and more favorable to the black market.
Is it fair to say the program as it's existed is effectively dead right now?
We'll see on January 24, when county counsel brings forward her proposed amendment and the board of supervisors makes its decision. But if the ordinance is to conform to the Pack decision, and the federal threat, then it is likely the program will be effectively dead in terms of the permitting system.
Could the county fight this threatened litigation?
The county could fight; I'm not sure that would be wise. For one thing, we've been struggling for the last three years to balance our budget in the face of the economic collapse, and we don't have the resources to take on the federal government. Their budget is probably in worse shape than ours, but they have the luxury of being able to run trillions of dollars of deficit, so they have an open checkbook to pursue a criminal or civil case against us. So we can't match their resources.
And the fact is all marijuana is illegal under federal law. Until there's a change in federal law that recognizes the right of states to chart their own course, I think battling the federal government in court is a losing proposition.
Given the decision by the U.S. Attorney to threaten litigation against Mendocino, what do you think that could mean for other places like Oakland or San Francisco that also have permit programs for distribution?
The federal government has already put numerous local jurisdictions on notice that their program or intended programs are in violation of federal law. What we've seen is a lot of the local jurisdictions have adopted bans on dispensaries. Many of those that had regulations have replaced them with bans. The programs for cultivation in several cases have been dropped or greatly reduced.
I think it's clear that the federal government on several fronts has been going after any above-ground method of cultivating or dispensing medical marijuana. It's almost as if there was a conscious effort to drive it all back underground. My opinion is that's going to further endanger public safety and the environment – the federal government doesn't seem to care about that.