Oregon cannabis: Growers sued ODA for failing to issue registration and seek restraint order against sheriff

A marijuana grower in Jackson County, Oregon, filed a lawsuit against the Oregon Department of Agriculture (ODA) for failing to publish a marijuana registry and filed a lawsuit with the Jackson County Sheriff to prevent the destruction of his cannabis.

We have written about the difficulties faced by cannabis farmers when law enforcement tries to destroy or do destroy cannabis crops or harvest:

As these articles explain, it is unlikely that the federal, state, or local government will receive damages from the federal, state, or local government after the law enforcement agency mistakenly seizes or destroys cannabis. This is because various exemption doctrines provide the government and its agents with a broad shield against most claims.

So, if cannabis farmers have reason to believe that their cannabis is at risk of being confiscated and destroyed, what should they do? One answer is to file a lawsuit to seek declarative relief, and to propose a temporary restraining order that prohibits law enforcement from taking action against marijuana. This is what happened here.

These allegations strongly indicate that official development assistance has messed up. The plaintiff company is owned and operated by a combat veteran who grows cannabis for CBD to treat post-traumatic stress disorder and is committed to providing resources for veterans who experience various PTSD, CPTSD, and other diseases and mental health challenges. The plaintiff registered cannabis cultivation in 2020 and leased several properties for cannabis cultivation. The plaintiff had no problems in 2020 (such as administrative or other violations), and all of its cannabis passed the pre-harvest and post-harvest tests.

In May 2021, the plaintiff claimed that it submitted an application for the 2021 season and paid the registration fee for each property. ODA cashed the check shortly after it was submitted. By June, the plaintiff had not received the registration, so he called ODA and was told that his application would be approved within a few days. The plaintiff subsequently purchased a cannabis clone and planted some plants underground. Relying on ODA’s statement, he will soon be registered. But none is coming.

In early July, the Jackson County Sheriff’s Department visited one of the properties and requested the use of the greenhouse in the property. They were told how to enter, but left without performing any checks. On July 20, a woman who refused to reveal her identity and was not an official development assistance agent visited the property and requested that the greenhouse and the cannabis plant inside be destroyed.The person also told the plaintiff that they were criminally liable HB 3000. (Look here For our opinion on HB 3000).

After these incidents, the plaintiff visited the Office of Official Development Assistance in Salem, Oregon on July 21 and asked about his application. An ODA employee told the plaintiff that the application had been completed, but ODA was short of staff and they expected to issue the registration within a few days. The plaintiff then talked to another ODA representative who stated that the application had been “set aside” because the Jackson County law enforcement department told ODA that the plaintiff was growing marijuana. This was news to the plaintiff, who explained that he had grown cannabis under the ODA registration in 2020 and just wanted to do so again.

Now very worried that law enforcement might damage his crops, the plaintiff filed a lawsuit against ODA and the Jackson County Sheriff. The plaintiff sought a statement that prior to the promulgation of section 41 of House Bill 3000 (signed into law on July 29, 2021), any prosecution of certain activities related to marijuana violated the ex post provisions of the Constitution. The plaintiff also requested an order to compel ODA to issue cannabis registrations.

But just filing a lawsuit does not guarantee the direct safety of the plaintiff’s cannabis.

Therefore, while filing the lawsuit, the plaintiff also filed a Unilateral Motion for Temporary Restraint Order (“TRO”). “Unilateral” motions are motions filed without notifying the other party. This is usually used if only In emergency situations where there is no time to complete the ordinary steps involved in submitting a motion. The motivation essentially tells the judge “Look, if you don’t act now and order the subject of the motion to do something (or not do something), I will suffer irreparable harm.” Here, the threat of destruction of property (marijuana) Imminent.

This is a wise procedural move by the plaintiff’s lawyer. They filed the motion on July 23 and obtained the TRO on the same day. TRO ordered the sheriff to stop any efforts to seize or destroy the plaintiff’s marijuana. The TRO also ordered ODA to issue registrations or “explain to the court” why such documents should not be issued before July 28.

But TRO does mean that the plaintiff won. TRO is temporary In terms of its nature, the parties must now appear in court on July 28 so that the court can decide whether the TRO should continue as the litigation progresses—in essence, whether to convert the TRO into a preliminary injunction. At the “show cause” hearing, both parties can provide evidence and testimony to support their claims. Assuming that the allegations in the complaint are supported by verifiable substantive evidence, it is hoped that the plaintiff will prevail and continue to seek to support the veterans by providing access to the CBD. (Note: This lawsuit was initiated by our colleagues Green Light Law Group.)

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