Over the previous three months, legislation enforcement raids of “unlawful marijuana grows” in Southern Oregon have spiked. Whereas I’m prepared to present legislation enforcement the good thing about the doubt that the quantity unlawful marijuana grows has elevated over the previous yr, my overview of a number of unrelated instances reveals some widespread flaws in legislation enforcement’s strategy.
And whereas the rhetoric concerning a “cartel takeover” is rampant amongst each native and state regulators, among the many instances I’m conscious of, there is no such thing as a proof of cartel exercise. Relatively, my suspicion is that white legislation enforcement brokers are seeing brown folks working in fields planting hemp seedings and leaping to unwarranted (to not point out problematic) conclusions.
Certainly, the leaps in logic and rush to judgment have led to legislation enforcement erroneously sweeping up completely non-criminal and even fully authorized hemp growers in addition to a full-frontal assault on agriculture generally by county land use regulators. Listed here are the highest 5 points I’m seeing:
1. Hemp Is Authorized.
With the passage of the 2018 Farm Invoice, hemp (or “industrial hemp”), which is outlined typically as cannabis that has THC content material of 0.3 p.c or much less on a dry weight foundation, is now not a federally managed substance. In Oregon, industrial hemp is particularly excluded from the definition of marijuana. Thus, any cannabis that has 0.3 p.c or much less THC content material is notmarijuana. There isn’t a straightforward technique to inform the distinction between hemp and marijuana simply by it or smelling it – a selected laboratory check is required.
Nevertheless, numerous Southern Oregon legislation enforcement businesses seem to have refused to replace their possible trigger evaluation to think about whether or not crops or leafy inexperienced substances they report seeing as suspected unlawful marijuana trafficking could, in reality, simply be people concerned within the authorized hemp market. What law enforcement officials and sheriffs could have been educated to search for in an effort to determine unlawful marijuana doesn’t seem to have been up to date to account for the truth that a authorized substance exists that carries the look and odor of marijuana however is in reality completely authorized industrial hemp.
2. Previous to the passage of HB3000, rising hemp and not using a registration is a civil violation, not a criminal offense.
A repeating theme I’m seeing in instances of legislation enforcement exercise at hemp farms in Southern Oregon contain hemp growers who, for no matter purpose, obtained hemp seedlings whereas their hemp registrations are nonetheless being processed by the Oregon Division of Agriculture, after which have been searched by legislation enforcement. Certainly, many candidates report that earlier this spring, ODA reported that processing occasions for hemp registrations have been 6 weeks lengthy or much less, which is per ODA’s processing occasions final yr. With the planting season closing, could folks desiring to develop authorized hemp took ODA’s representations concerning processing occasions on religion and ordered begins for his or her rising season, solely to have them arrive earlier than their registration is permitted.
Nevertheless, till the passage of HB 3000 on July 19, 2021 (just some days in the past), Oregon legislation was comparatively clear that the rising hemp and not using a registration will not be a criminal offense, however fairly is a civil violation with a most fantastic of $2500 per violation. Solely ODA has the authorized authority to impose these fines — prison legislation enforcement authorities don’t have any jurisdiction in any respect. Regulation enforcement is taking a opposite place, however in doing so are ignoring that the statute they’re counting on expressly references marijuana, not hemp.
3. Possessing dry hemp in any quantity is totally authorized.
Whereas rising hemp and not using a hemp grower registration is opposite to ODA laws (albeit not prison), Oregon legislation has no limits on the quantity of dry hemp any individual or firm can maintain for any objective, and there’s no license or registration required for the possession of dry hemp for business functions. Certainly, for marijuana, public possession limits just lately doubled to 2 ounces because of SB 408, which went into legislation final month, however possession of inexperienced leafy substances past that may require a check to find out whether or not possession of the substance is authorized or unlawful. At present, Southern Oregon legislation enforcement isn’t even contemplating whether or not the inexperienced leafy substances they’re seizing could also be completely authorized hemp fairly than marijuana.
4. Regulation enforcement has been raiding farms and taking samples for testing with out following correct sampling and testing procedures.
Whereas the excellence between hemp and marijuana is considerably simple, it doesn’t comply with that any single rising cannabis plant that checks above 0.3% complete THC content material implies that the sector that’s being grown is marijuana and never hemp. That’s as a result of ODA guidelines require pre-harvest subject testing to be executed in line with a really particular protocol that ensures a consultant pattern of every harvest lot is acquired for testing, after which the check outcomes of every pattern are averaged collectively to get an total move/fail ranking for THC content material. In different phrases, sure crops are allowed to have over the quantity of THC, however so long as the remainder of the crops check sufficiently underneath that the common result’s underneath 0.3%, all the harvest lot continues to be thought of hemp. And for good purpose. It’s not possible for a grower to know with certainty that each plant will check under a sure threshold. The aim of pre-harvest testing is to make sure that an total harvest lot doesn’t have an excessive amount of THC to be thought of hemp, and if it does, the grower has the choice to have the harvest lot re-sampled and re-tested, or segregate and destroy that lot in line with ODA directions.
Opposite to this rational, measured strategy, legislation enforcement is selectively taking a tiny pattern, probably from areas of fields that get extra solar or vitamins in an effort to seek out one plant that checks over 0.3% THC and declare all the operation an “unlawful marijuana develop.” Moreover, legislation enforcement organizations will not be lawfully approved to gather samples for testing, and aren’t topic to the identical laws regarding chain of custody that OLCC licensed labs are required to watch. And from the check outcomes I’ve seen, there may be typically a lag time of greater than 30 days from the date legislation enforcement collects the samples to the date they’re turned over to a lab for testing and evaluation. I’ve but to listen to any clarification for that prolonged lag time between sampling and testing.
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Regulation enforcement doesn’t seem to indicate any curiosity in utilizing sampling and testing procedures which can be designed to present probably the most correct outcomes, as a substitute they seem like utilizing strategies which can be recognized to be unreliable to get the outcomes that justify their actions. If you end up on this state of affairs, it is very important train your First Modification proper to report legislation enforcement and take a video of the officers as they’re amassing and dealing with the samples.
5. Agricultural buildings are exempt by state legislation from native constructing allow necessities.
It’s not simply legislation enforcement getting in on the reefer insanity. There are reviews of county constructing inspectors harassing landowners for “unpermitted” hoophouses and greenhouses. And I’m conscious of at the least one quotation out of Jackson County for fines of $100,000 for greenhouses that have been allegedly constructed and not using a constructing allow on land explicitly zoned for farm makes use of.
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These county regulators are working afoul of state legislation, which categorically exempts agricultural buildings from the state structural specialty code which counties regulate by means of the issuance of constructing permits. See ORS 455.315. Whereas I’ve beforehand recognized of county regulators making an attempt to argue that indoor marijuana manufacturing amenities are business in nature and never agriculture (from which they inevitably again down when confronted with ORS 475B.526), the obvious argument that greenhouses and hoophouses will not be agricultural in nature is fairly breathtaking — I can’t consider a extra quintessential instance of an agricultural constructing.
In case you are visited by legislation enforcement or native code enforcement for any purpose about your hemp crop, it is crucial that you just instantly search authorized recommendation from competent and certified counsel. The attorneys at Inexperienced Mild Regulation Group are up-to-speed on the entire points growers and landowners are experiencing in Southern Oregon.
Kevin Jacoby is an legal professional at Inexperienced Mild Regulation Group. He has targeted his profession on advising small to medium-sized companies each in litigation issues and in all points of administrative compliance and employment relations. Along with business-to-business litigation, Kevin has devoted a big quantity of his apply to administrative legislation. You may contact Kevin at firstname.lastname@example.org or 503-488-5424.
This text initially appeared on Inexperienced Mild Regulation Group and has been reposted with permission.
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