Saturday, April 30, 2016

Marijuana is flower and nursery seed

            

A marijuana seedling grown from "flower seed"

            In order to rule that homegrown marijuana is not protected by the Seed Bill, SB 863 (2013), Judge Wolke had to show that marijuana is not any of the seed crops listed in it.  We said that it fits in the categories of flower seed and nursery seed; the City and Judge Wolke said that it does not.
          The City’s attorney perhaps led Judge Wolke astray when he said at the hearing that the definition of flower seed was a “three-part test” and it did not fit all three parts.  Indeed, we were so taken aback by that argument that we did not even argue it, but moved on to nursery seed.  So in his ruling, Judge Wolke dismissed flower seed with this: 
          “Flower seed is defined in ORS 633.511(6) as follows:
‘Flower seed’ means seeds of herbaceous plants grown for their blooms, ornamental foliage, or other ornamental parts, and commonly known and sold in this state under the name of flower or wildflower seed.
“Homegrown marijuana is not grown for its blooms or ornamental value, and therefore is not covered by this definition.”
But this is not a three-part test and Wolke does not say that it is; it has “or” between the last two parts, not “and.” Then comes the “and:” “and commonly sold in this state under the name of flower seed or wildflower seed.”
Marijuana is most certainly grown for its flowers, the most valuable part of the plant, with the most medicinal/recreational value.  “Blooms” in this definition is not modified by “ornamental” as “leaves” or “parts” are.  Petals are not necessary to the common definition of “bloom,” which is synonymous with “flower.”  And most flower and wildflower seed in this state are sold under their common names, not generic terms.
Perhaps Judge Wolke was misled by the term “buds,” commonly used to describe the flowers of marijuana because they have no petals and are packed tightly together the way immature flowers of broccoli and cauliflower are when harvested for vegetable use.  But saleable marijuana is mature flowers, even seeded in some cases. 

A big, fat clone (rooted cutting), newly planted.  I prefer smaller plants for best growth.

Most of Judge Wolke’s ruling is dedicated to showing that homegrown marijuana, in particular, is not “nursery seed.”  He starts right off admitting that the legislature defined marijuana as a “propagent” of nursery stock in medical marijuana regulations, but refuses to admit that homegrown is as well, though we are buying the same for our home gardens.
He starts with the legislative intent of the Seed Bill, which says that seed crops are of “substantial economic benefit” to the state and so the state seeks to protect those “industries” by reserving regulation of them to itself.  He plays down the economic benefit to homegrowers and does not recognize the benefit of homegrown production to the whole marijuana industry, other markets, or the legislature’s intent to suppress the black market, as homegrown would keep the price down.  Allowing local regulation of homegrown would work against all those benefits.
But his beliefs about the impropriety of excluding homegrown marijuana from most state and all local regulation (as is the case with all homegrown crops, except that the state actually regulates homegrown marijuana) is moot if it fits the actual definitions of either flower seed or nursery seed, so he tackles the definition of nursery stock:
“’Nursery stock includes all botanically classified plants or any part thereof, such as floral stock, herbaceous plants, bulbs, buds, corms, culms, roots, scions, grafts, cuttings, fruit pits, seeds of fruits, forest and ornamental trees and shrubs, berry plants, and all trees, shrubs and vines and plants collected in the wild that are grown or kept for propagation or sale.’ (Emphasis added)
“The question becomes, does the final modifier, ‘...that are grow or kept for propagation or sale’ apply to all nursery stock or just to ‘...all trees, shrubs and vines plants collected in the wild...’”
          Judge Wolke immediately misquoted what he had just quoted, leaving out the “and” between “vines” and “plants.”  It is a very important “and,” as it separates “plants collected in the wild” from everything before it.  The final modifier, “that are grown or kept for propagation or sale” applies to “plants collected in the wild,” not to “all nursery stock” or non-wild “trees, shrubs and vines.”
         But he hangs his argument on that false question, and declares that the modifier must apply to all nursery stock, as otherwise, "virtually all botanically classified plants in Oregon would be nursery stock... to be regulated by the State Department of Agriculture,” raising the absurdity of a “nursery cop” knocking on his door because he is raising trees, vines, and shrubs in his yard.  Actually, the definition of nursery stock is followed by a list of major exceptions to it, but the Department of Agriculture does regulate most, if not all, plants grown commercially under other sections.  They don’t regulate home gardens; neither does the OLCC.
          Homegrowers can now legally propagate their own marijuana cuttings and are likely to as they have for decades, so homegrown marijuana would fit his faulty interpretation of the definition of nursery stock.  Regardless, it is obvious that homegrown marijuana is either flower seed or nursery seed, depending on whether it is propagated by seed or cuttings, and thus is protected by the Seed Bill from local regulations.  Therefore, Grants Pass Municipal Code 5.72.030, “Homegrown and Medical Marijuana,” is void in regard to homegrown marijuana. 
Medical growers will have to make their own case that the regulation in this code is not reasonable, but that is not difficult, with a definition of “indoors” that does not fit a house or any structure with windows and vague “signs of cultivation” that mostly have nothing to do with growing marijuana.  See “We are all living outdoors in Grants Pass.


Rycke Brown, Natural Gardener          541-955-9040        rycke@gardener.com