and Submitted February 16, 2017
Josephine County Circuit Court 15CV26821 Pat Wolke, Judge.
J. Jacoby argued the cause for appellant. On the opening
brief was Andrew C. DeWeese. With him on the reply brief was
Andrew C. DeWeese.
A. Button argued the cause for respondent. With her on the
answering brief was Hornecker Cowling LLP.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
In this declaratory judgment action, plaintiff appeals from a
judgment of the trial court, concluding that ORS 633.738,
which prohibits a local government from enacting or enforcing
local limits on the production or use of plant seeds,
preempts an ordinance enacted by the City of Grants Pass
requiring that marijuana plants grown at home for personal
use be grown indoors. Plaintiff contends that the trial court
erred in its construction of ORS 633.738. Held: The
trial court did not err. Marijuana seeds for home growing of
marijuana plants are not subject to ORS 633.738, because such
seeds are not "flower seed" or "nursery
stock" within the meaning of ORS 633.738. For that
reason, the city's ordinance is not preempted by ORS
Or. 9] EGAN, C. J.
sought a declaration that an ordinance enacted by the City of
Grants Pass, requiring that marijuana plants grown at home
for personal use be grown indoors, is preempted by ORS
633.738, which prohibits a local government from enacting or
enforcing local limits on the production or use of plant
seeds. Plaintiff appeals from a judgment of the trial court
holding that the city's ordinance is not preempted by the
statute, because the growing of marijuana plants at home is
not subject to ORS 633.738. We agree with the trial court and
begin with a brief description of the statutory context. In
1998, Oregon voters approved the Oregon Medical Marijuana Act
(the OMMA), now codified at ORS 475B.785 to 475B.949, which
authorizes the licensing, growing, processing, possession,
prescription, and dispensing of marijuana for medical use,
and exempts its use under the act from criminal liability.
The Oregon Health Authority administers the OMMA.
2014, voters approved the Adult and Medical Use of Cannabis
Act (the AMCA), now codified at ORS 475B.010 to 475B.545,
which legalizes adult recreational use of marijuana. The
Oregon Liquor Control Commission (OLCC) administers the
licensing and permitting of producers, processors,
wholesalers, and retailers of marijuana for recreational and
medical use under the AMCA.
AMCA also legalizes the noncommercial production, making,
processing, possession, and storage of marijuana and
marijuana products "at a household." ORS
475B.301(1). Persons who grow marijuana plants at home for
personal noncommercial use are not subject to the licensing
and permitting requirements that apply to commercial
producers, processors, wholesalers, and retailers of
marijuana under the AMCA, "if the total amount of
homegrown marijuana at the household does not exceed four
marijuana plants at any time." Id. ORS
475B.015Q0) defines "homegrown" marijuana as
marijuana plants or marijuana products "grown or made by
a person 21 years of age or older for noncommercial
purposes." ORS 475B.306 provides that [291 Or. 10] a
person may not "produce, process, possess or store
homegrown marijuana" or marijuana products where they
"can be seen by normal unaided vision from a public
city has enacted an ordinance requiring that, after December
31, 2015, marijuana "cultivation, drying, curing,
storage, production or processing" for recreational or
medical use "shall be conducted indoors." Grants
Pass Municipal Code (GPMC) 5.72.030(2). There is no similar
restriction in the AMCA, but plaintiff concedes that
restricting growing of marijuana to indoor areas "may
not conflict with any restriction" in the AMCA.
Plaintiff brought this action seeking ...