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BoCC enacts new marijuana moratorium

The Archuleta County Board of County Commissioners has enacted another moratorium banning any new or pending applications for medical marijuana-related businesses.

The new moratorium, effective for a year, does not affect the one medical marijuana dispensary operating legally in Archuleta County.

The moratorium was originally slated to be discussed in an executive session by the commissioners, but Commissioner Clifford Lucero said he saw no need to do so, choosing instead to have County Attorney Todd Starr discuss the moratorium in public.

In introducing the topic for discussion, Starr said that, in his experience, he has seen no other area of law that has changed as much in a short period of time as law concerning medical marijuana.

Starr then indicated that a series of letters, detailed below, made it difficult to guide and advise the BoCC in light of the “changing landscape” of medical marijuana in Colorado.

Starr advised that the BoCC institute the moratorium for one year in order to “step back” and let the federal government determine how and if it will prosecute medical marijuana offenses.

The moratorium puts the county on even footing with many counties in Colorado, Starr said.

Complicating Starr’s guidance was a series of letters, beginning with a recent letter from the U.S. Department of Justice in California that warned Oakland officials that, while the state may allow medical marijuana operations, such operations were still illegal under federal law.

Similar letters from the U.S. Department of Justice’s Colorado attorney, John Walsh, and Attorney General John Suthers on April 26 reiterated the view that, while Colorado may allow medical marijuana operations under 2000’s Amendment 20, federal law does not allow such operations.

The letters seek to clarify a 2009 memo from the Department of Justice to federal law enforcement (the “Ogden memo”), which indicated that, while the manufacturing, possession and distribution of marijuana was a violation of federal law, the department would not use its resources to pursue individuals acting in strict compliance with state medical marijuana laws.

Following the Ogden memo, several states allowing medical marijuana, including Colorado, saw a steep rise in people claiming to be using marijuana for medical purposes, according to a letter from Suthers. In Colorado, the letter states, there are now approximately 123,000 registered medical marijuana patients.

In the letter to Suthers from Walsh, Walsh states that “there is no confusion as to the Department’s view on such activities.”

In the letter, Walsh states that marijuana is considered a Schedule I substance under the Controlled Substance Act (CSA), and cites a number of titles and sections of the U.S. Code in which marijuana, selling, distributing, growing, or aiding in such activities is illegal.

“While the Department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the Ogden Memo, we maintain the authority to enforce the CSA vigorously against individuals and organizations that participate in the unlawful manufacturing and distribution involving marijuana, even if such activities are permitted under state law,” Walsh’s letter states.

The letter also states that, “It is well settled that a State cannot authorize violations of federal law,” citing a court case in Colorado that ruled state law does not alter the federal law’s prohibition of marijuana.

Starr called the letters a “black-letter law statement.”

Further complicating the issue at the state level is H.B. 1043, which seeks to clean up last year’s H.B. 1284 and subsequent rule making by the Medical Marijuana Enforcement Division at the Department of Revenue, as well as to authorize state licensing of “medical marijuana infused product” facilities with up to 500 marijuana plants and open the door to larger facilities with a state-granted waiver based on “business needs.”

Grow facilities and operations are currently banned in Archuleta County.

A push is also currently aiming for full legalization to be on the 2012 ballot.

In discussing the moratorium, Commissioner Steve Wadley said recent conversations with the state attorney general centered around medical marijuana and the apparent contradiction between state and federal law.

Commissioner Michael Whiting said he might feel differently about the moratorium if there were no access to medical marijuana for Archuleta County residents, but noted that the moratorium kept the county out of “totally hot water.”

Lucero agreed that the best choice was to enact the moratorium until more was known at the state and national levels.

Though approved at Tuesday’s meeting, the moratorium will likely change before all is said and done, with mistakes in the resolution stating that the moratorium is in effect for one year, but that “applications for any such business will not be processed during the sixty day period.”

Starr said he didn’t believe the mistake would open the county to legal issues on the topic, but said that the resolution did need to be corrected, nevertheless.

Archuleta County was under a shorter moratorium that began on March 15, instituted for the same reason — to allow local officials to observe state action on the topic.

Archuleta County approved certain medical marijuana operations on Oct. 5.

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