“GP nixes outdoor pot plants”? Let’s sue!

A pot plant, legally planted after July 1, 2015

The Grants Pass City Council banned outdoor growing of marijuana, even in a greenhouse, on July 15^th, in an emergency nuisance ordinance, after having been told by our state Rep. Carl Wilson, that it would violate Senate Bill 863 (2013), now ORS 633.738, which reserves the regulation of agricultural items to the state.  Let’s sue them.

SB 863 was passed in 2013 in response to the anti-GMO initiative being petitioned in Jackson County, but it applies to all seed-bearing farmed plants.  SB 863 became ORS 633.738 and is printed below.  It exempted only Jackson County’s GMO ban.  But it can be overridden where the state specifically allows it in other laws.

Attorney Paul Loney briefed the Oregon Sungrowers (OregonSungrown.org) on the implementation of Measure 91 and the changes to the Oregon Medical Marijuana program in House Bill 3400 (2015).  M 91 allows local governments to impose “reasonable time, place, and manner restrictions” on licensed recreational growers.  “Reasonable” is the operative word here.

HB 3400 also brought new Oregon Health Authority rules to medical growers, with a list of various limits on plant numbers, depending on how many patients a grower was supplying as of December 31, 2014; whether they are located in or out of a city; and whether patients stay with the grower.  None may grow more than 96 plants, and if they co-license with OLCC to grow recreational pot, they are still held to medical plant limits.  OHA rules allow only specific types of local “reasonable regulations” on medical growers and dispensaries.  Medical cardholders growing 12 plants or less at their own residences are free of inspections.

But the OLCC licensing rules do not apply to those who stay within the homegrown limits: 4 plants; 8 ounces of dried bud or leaf; 1 pound of edibles; and 72 ounces of liquid product, all kept out of sight of public places.  OHA limits apply only to medical cardholders.  SB 863 protects homegrowers from local restrictions.

Even if it is found to be reasonable to force commercial and medical growers to grow only indoors in the city, SB 863 does not allow any local restrictions on those not subject to licensing rules.

This homegrower wants to sue Grants Pass and request an injunction to stop enforcement of their illegal blanket ban on outdoor growing of pot.  I am raising money on GoFundMe.com to retain an attorney.  See the “Homegrown Defense Fund” at http://www.gofundme.com/zb38423u.

P.S.  I borrowed $5000 to get this lawsuit started.  I would do so if I was cited; it is better to sue.  It will not be added to the fund, but will be repaid if it is not used, and repaid from the city if it is.

 GoFundMe campaigns have no limit or end date.  The Homegrown Defense Fund will be held in a special account to be available if the city again threatens our homegrown rights.  In 5 years, it will become the Keep The Rogues Honest Fund, for general defense of poor people’s rights against Rogue government.  It will be used only for legal fees.

The Grants Pass ordinance has not been codified yet; it can be found in the July 15th meeting packet at  //www.grantspassoregon.gov/AgendaCenter/ViewFile/Agenda/07152015-1253

                   

July 2015 protest issue, published in GardenGrantsPass.blogspot.com

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

633.738 Prohibition of local laws to inhibit or prevent production or use of seeds or products of seeds.

(1) As used in this section:
(a) “Local government” has the meaning given that term in ORS 174.116.
(b) “Nursery seed” means any propagant of nursery stock as defined
in ORS 571.005.

(2) Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area or quarantine, to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed. The prohibition imposed by this subsection includes, but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.

(3) Subsection (2) of this section does not prohibit a local government from enacting or enforcing a local law or measure to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed on property owned by the local government. [2013 s.s.1 c.4 §3]

Note: Section 4, chapter 4, Oregon Laws 2013 (first special session), provides:
Sec. 4. Section 3 (sic?) of this 2013 special session Act [633.738] does not apply to any local measure that was:
(1) Proposed by initiative petition and, on or before January 31, 2013, qualified for placement on the ballot in a county; and (2) Approved by the electors of the county at an election held on May 20, 2014. [2013 s.s.1 c.4 §4]

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

633.738 Prohibition of local laws to inhibit or prevent production or use of seeds or products of seeds.

(1) As used in this section:

(a) “Local government” has the meaning given that term in ORS 174.116.

(b) “Nursery seed” means any propagant of nursery stock as defined
in ORS 571.005.

(2) Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area or quarantine, to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed. The prohibition imposed by this subsection includes, but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.

(3) Subsection (2) of this section does not prohibit a local government from enacting or enforcing a local law or measure to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed on property owned by the local government. [2013 s.s.1 c.4 §3]

Note: Section 4, chapter 4, Oregon Laws 2013 (first special session), provides:

Sec. 4. Section 3 of this 2013 special session Act [633.738] does not apply to any local measure that was:
(1) Proposed by initiative petition and, on or before January 31, 2013, qualified for placement on the ballot in a county; and (2) Approved by the electors of the county at an election held on May 20, 2014. [2013 s.s.1 c.4 §4]

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

I suspect that Section 4 has a typo in referring to section 3 when it actually is supposed to apply to Section 2.  I found the same typo online at OregonLaws.org.

Whose law should we obey?

Honorable Councilors, Mayor and Manager:

Three City Councilors were on the KAJO talk show on July 7^{th .}  When they were confronted with a state law which would nullify a proposed ordinance, one asked whose law we should obey, state or federal?

          The state is the basic level of government, from which both federal government and local governments are derived.  When the colonies declared independence, they declared themselves “free and independent states.”  The Articles of Confederation bound them too loosely for some years, and then the Constitution was written to give the federal government specific, listed powers, with other powers reserved to the states and the people.  Its powers allow it to deal with foreign governments by treaty or war; regulate the military; coin money; regulate interstate commerce; judge disputes between the states; to levy particular taxes to do these and other listed powers; and by the 14^th amendment, to secure the rights of the people in the states.  Much of federal law is not authorized by the Constitution; it is tolerated by the states.

          The states control elections; we register to vote as citizens of our state of residence.  States license driving, marriage and many professions, including doctors.   The vast majority of the laws that we are subject to are state laws. 

          States formed the federal government; they also charter cities and counties.  That which is licensed or chartered by a government can be revoked thereby.  The feds cannot revoke your charter; the state can, in theory.

          The federal government has backed off enforcing its laws where they are contradicted by state law.  The Supreme Court stopped John Ashcroft from going after legal medical marijuana growers and sellers; the feds have since stopped prosecuting people following state marijuana law. 

          Where there is a conflict between state and federal law, therefore, you should obey the one with constitutional authority; they have separate realms of authority. 

          Where there is a conflict between city and state law, you should obey the state, the source of your authority to be a city, unless the state law conflicts with the state or federal constitution.  Then you should defend the rights of all your residents.      

July 2015 protest issue.

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

Marijuana isn’t a weed in Oregon

        

         Remember the anti-GMO ordinances that both Jackson and Josephine Counties passed?   Early in the process, our state legislature passed a bill, SB 863 (2013), which forbade local governments to enact or enforce any local measure or ordinance that would inhibit or prevent the production of agricultural items.  Jackson County voters were petitioning their ordinance for the ballot at the time, so it was exempted from the statute.  Josephine County, starting petitions after the law was passed, was not.

          Jackson County’s GMO ordinance was tested in court recently under the Freedom to Farm Act, and a judge upheld it, finding that there is no right to grow a crop that degrades your neighbor’s crop.  Hemp growers and their neighbors should take note.

          Josephine County’s anti-GMO measure has not been enforced nor challenged; it is of no effect, violating SB 863.

          NowGrants Pass City Council intends to ban outdoor growing of marijuana within thecity.  They voted for it once on July 1, with the second reading to be voted on July 15^th.  Representative Carl Wilson had sent them a letter by email, warning them that they would risk a lawsuit under SB 863 if they passed it.  They ignored that part of the letter, and focused on his warnings about the problems that widespread indoor growing would cause our electrical grid and waste water treatment plant, some finding reasons there to ban pot growing entirely in the city.

          Marijuana is not a weed in Oregon anymore.  It is an agricultural item, legally grown to be used, and has been since medical marijuana was passed.  It has been a legal item in commerce since the legislature authorized dispensaries. 

          Grants Pass has the authority to inhibit or prevent the growth of weeds under its nuisance codes.  It hasn’t had the authority to stop or slow the production of agricultural items since SB 863 was passed. 

But we in Josephine County can thank Jackson County for inspiring SB 863 in 2013.  A lawsuit and injunction will be needed to enforce it if the Council passes their outdoor pot growing ban on July 15^th. 

 Special July 2015 protest issue.

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

SB 863 (2013) is ORS 633.738

Courtesy of Paul Loney, Attorney at Law:

633.738 Prohibition of local laws to inhibit or prevent production or use of seeds or products of seeds.

(1) As used in this section:

(a) “Local government” has the meaning given that term in ORS 174.116.

(b) “Nursery seed” means any propagant of nursery stock as defined
in ORS 571.005.

(2) Except as provided in subsection (3) of this section, a local government may not enact or enforce a local law or measure, including but not limited to an ordinance, regulation, control area or quarantine, to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed. The prohibition imposed by this subsection includes, but is not limited to, any local laws or measures for regulating the display, distribution, growing, harvesting, labeling, marketing, mixing, notification of use, planting, possession, processing, registration, storage, transportation or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed.

(3) Subsection (2) of this section does not prohibit a local government from enacting or enforcing a local law or measure to inhibit or prevent the production or use of agricultural seed, flower seed, nursery seed or vegetable seed or products of agricultural seed, flower seed, nursery seed or vegetable seed on property owned by the local government. [2013 s.s.1 c.4 §3]

Note: Section 4, chapter 4, Oregon Laws 2013 (first special session), provides:

Sec. 4. Section 3 (sic) of this 2013 special session Act [633.738] does not apply to any local measure that was:
(1) Proposed by initiative petition and, on or before January 31, 2013, qualified for placement on the ballot in a county; and (2) Approved by the electors of the county at an election held on May 20, 2014. [2013 s.s.1 c.4 §4]

                   

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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

I suspect that Section 4 has a typo in referring to section 3 when it actually is supposed to apply to Section 2.  I found the same typo online at OregonLaws.org.

GP: Let us grow legally and safely

Speech to the Grants Pass City Council, 7-1-15

Honorable Mayor, Council, and Manager:

          Today, I planted my first legal crop of marijuana.  It means a lot to me to be able to grow it legally.  Tomorrow it could be illegal.  Please don’t make me and many others continue to grow it illegally by demanding that we grow it in our houses.  We don’t have the money for lights or room in our houses.  We have been growing it outdoors or in greenhouses for years now with no problem but thieves.

          Police in Portland are telling people to grow discretely, and not let anyone know, because of thieves.  But in my case, secrecy is futile; I am a well-known pot activist and gardener.  People will assume that I am growing it.

          Pot thievery became more obvious after medical marijuana was passed, but it was happening all along.  Thieves were fairly safe from arrest, though not from retaliation, because pot was illegal.  Pot growers and smokers rarely reported thieves, being punished for growing or possessing it if they did.  That changed with thefts of medical pot, as growers and patients claimed protection of the law when they were targeted by thieves.

          Growing pot under Measure 91, people who are stolen from are quite likely to call the cops.  It won’t be so safe to steal.  But if you pass this ordinance, many of us will be growing illegally and will be subject to fines and confiscation if we report thefts.

We will still be in danger from police, and will be in more danger from thieves.  Those who obey your ordinance will be subject to home invasion robberies, not just backyard sneaks.  People could get killed.

Josephine County voters voted down Measure 91 by only 2 votes: 17,313 to 17,311.  If I had voted for it, it would have been a tie.  It appears that half of the county, and probably half the city, favor home pot growing.

You want to pass a city public safety sales tax in November.  But if you pass this ordinance, you will push away a large minority of voters, the silent majority of those that voted down the county levy.  People who can’t safely call the cops generally don’t vote to fund the cops.  Many more don’t vote at all, they are so alienated.  Please kill this ordinance and allow us to grow cannabis legally, safely, and cheaply, to defeat the black market, the real enemy of law and order.  We might then trust you enough to vote for your tax.

         

July 2015 issue, online at GardenGrantsPass.blogspot.com and at the Mail Center, 305 NE 6^th

Follow @AnRycke on Twitter; GP Gardener on Facebook; check out GPgardener.com for blogs

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