Reefer Madness 2.0: War on cannabis rages in southern Oregon

In the past three months, law enforcement raids on “illegal marijuana growing” in southern Oregon have increased. While I am ready to give law enforcement the edge that the number of illegal marijuana increases has increased over the past year, my review of several independent cases reveals some common mistakes in law enforcement’s approach.

And while the rhetoric about a “cartel takeover” is widespread among both local and state regulators, there is no evidence of cartel activity in the cases I know of. Rather, my suspicion is that white law enforcement agencies see brown people working in fields, planting hemp seeds and jumping to unjustified (not to mention problematic) conclusions.

Indeed, the leaps in logic and the rush to judge have led law enforcement to mistakenly spearheaded entirely non-criminal and even entirely legal hemp farmers, as well as a frontal attack on agriculture in general by the county’s land use inspectorates. Here are the top five problems I see:

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1. Hemp is legal.

With the passage of the 2018 Farm Bill, hemp (or “industrial hemp”), which is broadly defined as cannabis with a THC content of 0.3 percent or less on a dry weight basis, is no longer a state-controlled substance. In Oregon, industrial hemp is specifically excluded from the definition of marijuana. Therefore, any cannabis with a THC content of 0.3 percent or less is not marijuana. There’s no easy way to tell the difference between hemp and marijuana just by looking at it or smelling it – a special laboratory test is required.

However, various law enforcement agencies in southern Oregon appear to have refused to update their probable root cause analysis to see if the plants or leafy green matter they see as a suspected illegal marijuana trade are actually just individuals involved in the legal hemp market. What police officers and sheriffs may have been trained on to identify illegal marijuana does not appear to have been updated to reflect the fact that there is a legal substance that bears the look and smell of marijuana, but in fact perfectly legal industrial is hemp.

2. Prior to the introduction of HB3000, growing hemp without registration is a civil violation, not a crime.

One recurring theme I see in cases of law enforcement activity on hemp farms in southern Oregon involves hemp farmers who for some reason received hemp seedlings while their hemp registrations were still being processed by the Oregon Department of Agriculture and then searched for law enforcement. In fact, many applicants report that ODA reported earlier this spring that hemp registration processing times were 6 weeks or less, which is in line with ODA processing times last year. With the end of the planting season, individuals who wish to grow legal hemp can have the pledges of ODA’s turnaround times in faith and order the start of their growing season just to have them arrive before their registration is approved.

However, until the passing of HB 3000 on July 19, 2021 (a few days ago), Oregon law was relatively clear that growing hemp without registration is not a crime, but a civil violation with a maximum fine of $ 2,500 per violation . Only ODA has the legal authority to impose these fines – law enforcement agencies have no jurisdiction. Law enforcement agencies take the opposite position, ignoring the fact that the law they are relying on explicitly refers to marijuana, not hemp.

3. Obtaining any quantity of dry hemp is completely legal.

While growing hemp without a hemp grower registration is against ODA regulations (albeit not a criminal offense), Oregon law has no limit on the amount of dry hemp a person or business can hold for any purpose, and it isn’t License or registration to own dry hemp for commercial purposes. In fact, public ownership limits for marijuana have recently doubled to two ounces due to SB 408, which went into effect last month, but possession of any green leaf substance beyond that requires a test to determine if possession of the substance is legal or is illegal. Right now, law enforcement agencies in southern Oregon aren’t even considering whether the green leaf matter seized might be perfectly legal hemp rather than marijuana.

4. Law enforcement agencies raided farms and collected samples for testing without following proper sampling and testing procedures.

While the distinction between hemp and marijuana is fairly straightforward, it does not follow that every single growing cannabis plant that has total THC levels above 0.3% means that the field being grown is marijuana and not hemp is. This is because the ODA rules require that pre-harvest field tests be conducted according to a very specific protocol that ensures that a representative sample of each harvest lot is obtained for testing and then the test results of each sample are averaged to give an overall result receive fail rating for THC content. In other words, certain plants are allowed to have the amount of THC, but as long as the rest of the plants test sufficiently below that the average result is below 0.3%, the entire harvest is still considered hemp. And for a good reason. It is impossible for a breeder to know with certainty that every single plant is being tested below a certain threshold. The purpose of pre-harvest testing is to ensure that an entire batch of harvest does not contain too much THC to be considered hemp, and if so, the breeder has the option to re-sample and reapply the batch testing. or separate and destroy this lot according to the ODA instructions.

Photo by Drew Angerer / Staff / Getty Images

Contrary to this rational, measured approach, law enforcement selectively takes a tiny sample, likely from fields that are receiving more sun or nutrients, to find a plant that tests above 0.3% THC, and the whole process as “illegal marijuana.” In addition, law enforcement agencies are not legally authorized to collect samples for testing, and are not subject to the same chain of custody regulations that OLCC-licensed laboratories must adhere to. And from the test results I have seen, there is often a delay of more than 30 days from the date the police collect the samples to the date they are handed over to a laboratory for testing and analysis, I still have no explanation for this extended delay between sampling and test heard.

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Law enforcement agencies appear to be showing no interest in using sampling and testing procedures designed to provide the most accurate results, but appear to be using methods known to be unreliable to obtain the results that warrant their actions. If you find yourself in this situation, it is important to exercise your right under Article One to record law enforcement agencies and record a video of the officers while they are collecting and handling the samples.

5. Agricultural buildings are exempt from the local building permit requirements according to state law.

It’s not just law enforcement agencies getting involved in the chilling frenzy. There have been reports from county building inspectors harassing landowners for “unauthorized” tire houses and greenhouses. And I am aware of at least one quote from Jackson County that provided fines of $ 100,000 for greenhouses allegedly built without planning permission on land specifically intended for agricultural use.

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These district supervisory authorities violate state law that categorically exempts agricultural buildings from the state special structural code, which regulates the districts by issuing building permits. See ORS 455.315. While I previously knew of district regulators trying to argue that indoor marijuana production facilities are commercial and non-agricultural (which they inevitably step back from when faced with ORS 475B.526), ​​the obvious argument is that greenhouses and Reifenhäuser not an agricultural building. The nature is quite breathtaking – I can’t think of a more typical example of an agricultural building.

END EFFECT

If for any reason you are visited by law enforcement or local law enforcement agencies because of your hemp culture, it is important that you seek competent and qualified legal counsel immediately. Green Light Law Group attorneys are up to date on all of the issues farmers and landowners in southern Oregon face.

Kevin Jacoby is an attorney with the Green Light Law Group. He has focused his professional career on advising small and medium-sized companies on procedural matters as well as on all aspects of administrative compliance and the employment relationship. In addition to business-to-business processes, Kevin has devoted a significant part of his practice to administrative law. You can contact Kevin at info@gl-lg.com or 503-488-5424.

This article originally appeared in the Green Light Law Group and was republished with permission.