CITY OF CAVE JUNCTION, an Oregon Municipal Corporation, Plaintiff-Appellant Cross-Respondent,
STATE OF OREGON; Oregon Health Authority; and The Honorable Kate Brown, Governor of the State of Oregon, Defendants-Respondents Cross-Appellants, and Susan HAYES, Defendant-Respondent, and ASSOCIATION OF OREGON COUNTIES and League of Oregon Cities, Intervenors-Respondents Cross-Respondents.
and submitted February 9, 2016.
County Circuit Court 14CV0588; Pat Wolke, Judge.
Ryan Kirchoff argued the cause for
appellant-cross-respondent. With him on the opening brief was
James Holmbeck Kirchoff, LLC. With him on the supplemental
brief was Kirchoff Law Offces, LLC.
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondents-cross-appellants. With him on the answering
and cross-opening brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General. With him on
the cross-reply and supplemental briefs were Ellen F.
Rosenblum, Attorney General, and Paul L. Smith, Deputy
Or. 217] Rob Bovett and Sean E. O'Day argued the cause
and fled the joint supplemental brief for
respondents-cross-respondents. With them on the joint
answering and cross-answering brief was Katherine Thomas.
appearance for respondent Susan Hayes.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
time the underlying action was initiated, Cave Junction's
municipal code required its businesses to obtain licenses and
comply with municipal, state, and federal laws. The city
initiated this declaratory judgment action to clarify its
obligations in light of the conflict between the federal
Controlled Substances Act (CSA) and state marijuana laws. The
city sought a declaration that House Bill 3460 (2013), Senate
Bill 1531 (2014), and Senate Bill 863 (2013) were preempted
by the CSA and, for that reason, did not displace the
city's authority to require marijuana business licensees
to comply with federal law, even though such compliance would
be impossible. Held: Due to two changes in state and local
law, the appeal no longer presented a justiciable
controversy; House Bill 3400 (2015) authorized local
governments to enact bans on medical marijuana dispensaries
and Cave Junction no longer bans such dispensaries.
Resolution of the issue presented by this appeal would not
have a practical effect on the city because the city no
longer seeks to prohibit medical marijuana dispensaries. The
Court of Appeals also rejected intervenors' argument that
the appeal was not moot, holding that the declaration that
the intervenors sought in their complaint (and obtained) was
narrower, and, even if it could be construed more broadly,
the issue was not ripe for review.
and cross-appeal dismissed.
explain, state and local changes in law and policy regarding
Oregon's evolving legal marijuana industry have overtaken
this declaratory judgment appeal and cross-appeal, such that
they no longer present a justiciable controversy. We
therefore dismiss both.
City of Cave Junction filed this declaratory judgment action
to resolve a perceived conflict between the city's
then-current business licensing requirements and the Oregon
Medical Marijuana Act (OMMA). The city's municipal code
generally requires businesses operating in the city to obtain
a license and further requires licensees to conduct their
businesses in a manner that comports with municipal, state,
and federal laws. Cave Junction Municipal Code (CJMC)
§§ 5.04.070 (C), 5.04.080, 5.04.100. The
requirement of federal law compliance, if enforced, poses an
obstacle to the marijuana businesses allowed under Oregon
law. That is because, with narrow exception, the cultivation,
possession, and distribution of marijuana remains illegal
under the federal Controlled Substances Act (CSA),
notwithstanding Oregon's decision to decriminalize and
formally regulate the marijuana industry. See 21 USC
§§ 841(a), 844(a); United States v.
Mcintosh, 833 F.3d 1163, 1179 n 5 (9th Cir 2016). As the
United States Court of Appeals for the Ninth Circuit recently
reiterated in a case addressing the intersection of competing
federal and state marijuana laws,
"[t]he CSA prohibits the manufacture, distribution, and
possession of marijuana. Anyone in any state who possesses,
distributes, or manufactures marijuana for medical or
recreational purposes (or attempts or conspires to do so) is
committing a federal crime."
Mcintosh, 833 F.3d at 1179 n 5.
Or. 219] Concerned that granting business licenses to medical
marijuana dispensaries could jeopardize the city's access
to federal grant funds and potentially expose city officials
to federal criminal liability, the city initiated this
declaratory judgment action to clarify its obligations in
light of the conflicting federal and state marijuana laws.
Specifically, the city sought a declaration that House Bill
(HB) 3460 (2013), codified at former ORS 475.314
(2013), renumbered as ORS 475B.450 (2015), and
Senate Bill (SB) 1531 (2014), amending former ORS
475.314 (2013), were preempted by the CSA and, for that
reason, did not displace the city's authority to require
business licensees, including marijuana businesses, to comply
with federal law, even though such compliance is impossible
under current federal law. In so doing, the city acknowledged that
the state law provisions at issue preempted its authority to
prohibit medical marijuana dispensaries otherwise authorized
by state law, but contended that federal law displaced state
response, the state agreed that HB 3460 and SB 1531, together
with Senate Bill (SB) 863 (2013), codified at ORS 633.738,
preempted the city's authority to preclude
state-registered marijuana facilities from possessing and
transferring marijuana in a manner that complies with state
law. However, the ...