Marijuana companies sue Lewis County over de facto ban

By Natalie Johnson

The Chronicle

Three marijuana retailers are suing Lewis County over an ordinance approved last year that essentially bans cannabis-related businesses in unincorporated Lewis County by requiring them to get approval from the federal government, which provides no such permission.

A trial date has not yet been scheduled.

“Defendant’s (Lewis County’s) refusal to allow Plaintiffs to operate as businesses are actual and substantial injuries to Plaintiffs,” the lawsuit reads.

The companies argue in their complaint, filed in July 2017, that the county’s ordinance requiring marijuana companies to obtain federal permission before getting a business license in Lewis County is contrary to state law.

They ask the court to command the county to issue business licenses to the marijuana retailers.

The state Attorney General’s Office filed a motion in July 2017 to intervene in the case. The motion was granted Friday, meaning the state will now be a defendant along with Lewis County in the lawsuit, Civil Deputy Prosecutor Eric Eisenberg told The Chronicle.

“In their original motion to intervene, the AG indicated that it believes Lewis County’s ordinance is consistent with state law,” he wrote in an email. “So, they are entering as a defendant because they will, it seems, be primarily arguing against the plaintiffs and not against Lewis County.”

The attorney general’s motion to intervene argues that the state can ask to be a party to any lawsuit that asserts a state law or local ordinance is unconstitutional. Lewis County Superior Court Judge Andrew Toynbee signed an order to add the attorney general’s office to the suit Friday morning.

Five Points of Pierce County, Dank’s Wonder Emporium and Washington Green Leaf filed a Writ of Mandamus in July 2017 against Lewis County in Lewis County Superior Court asking that the county be forced to provide them with business licenses.

They are represented by attorney Darian Stanford, of Slinde Nelson Standford in Portland, Oregon. He did not immediately return a request for comment.

“Defendant has issued an ordinance requiring all those applying for business licenses to produce, process or sell marijuana at retail within the unincorporated areas of Lewis County to first obtain proof of registration approval for the applicant’s marijuana activity from the United States Attorney General or Drug Enforcement Agency, resulting in complete prohibition on the production, processing and retail sale of recreational marijuana in unincorporated Lewis County, despite the state-wide legalization of such activities,” the complaint reads.

The Board of Lewis County Commissioners approved that ordinance in June 2017 after lifting a moratorium on marijuana businesses that had been in place since 2013.

U.S. Attorney General Jeff Sessions has previously stated that he does not believe marijuana should be legalized.

While Washington state Attorney General Bob Ferguson has supported the state’s right to legalize recreational cannabis use, he has also concluded that Initiative 502 does not preclude local governments from enacting bans against such businesses in their jurisdictions.

In a response to the suit filed in January, Lewis County asks for the lawsuit to be dismissed, and argues the county’s ordinance is not the only hindrance to the companies.

“Plaintiffs are prohibited by other jurisdictions’ law, beyond the control of Lewis County, from operating marijuana retail establishments at the proposed location,” the reply reads.

A reply filed by the state Attorney General’s office also asks that the suit from the marijuana retailers be dismissed with prejudice, meaning the companies would not be able to refile.

While it generally supports the county’s right to ban marijuana companies, the AG’s response includes a cross-claim against Lewis County, taking issue with language in the county’s reply to plaintiffs.

“Defendant Lewis County asserts … that ‘No state actor, whether it be the state legislature or a state court, has the authority to compel a municipal corporation to commit a federal felony,’” the AG’s response reads. “To the extent this allegation may be construed to contend that state law would compel Lewis County to commit a felony, the Attorney General denies this claim.”