Federal waffling on pot creates state headaches



ELLSWORTH — In a move that has created angst for state and local officials, U.S. Attorney General Jeff Sessions last week rescinded hands-off Obama-era guidance on prosecutors’ handling of marijuana cases.

The move by the Attorney General comes as the state continues to craft legislation after voters approved a 2016 measure legalizing retail sales. At a public hearing in Augusta on Tuesday, the Legislature’s Joint Committee on Marijuana Legalization Implementation introduced a bill to extend the moratorium on sales of recreational marijuana through May 1. The current moratorium, which expires on Feb. 1, restricts Mainers from buying or selling cannabis. Adults over 21 are currently permitted to possess 2.5 ounces and grow up to six plants.

In 2013, the Obama Administration issued the Cole Memo, effectively stating that the administration would limit its prosecutions of businesses and individuals in states where marijuana is legal. The new guidance from Sessions removes these protections, leaving open the possibility of federal enforcement. In a note last week, Sessions wrote that this would be “a return of trust and local control to federal prosecutors.” But many say the decision by Sessions adds another layer of frustration onto an already conflicting set of state and federal guidelines.

“The whole struggle between federal and state makes it extremely difficult to deal with this at the local level,” said Ellsworth Police Chief Glenn Moshier. “You need to either say yay or nay. You can’t have a waffling or a flip-flopping from one administration to the next.”

Ellsworth and many other Hancock County towns have enacted moratoriums banning commercial sales, social clubs and growing facilities. The bans do not apply to personal use.

Some on Tuesday said that allowing towns to decide whether to allow retail sales would create cannabis “deserts” where a black market would thrive in lieu of regulation, noting they believe that this would also place additional burdens on resources in towns and cities where commercial sales are allowed.

No changes to the bill were presented on Tuesday, but co-chair of the Committee Sen. Roger Katz (R-Augusta) said it would be altered before its reintroduction to the Legislature. The original bill, which taxed retail sales at an effective rate of 20 percent (compared to a 5.5 percent tax on medical caregivers) and required towns to opt into retail sales was vetoed by Governor Paul LePage in November. The veto was later sustained in a vote by the House.

Although a new version of the bill was not presented on Tuesday, several groups did introduce their own full-scale proposals. One was presented by Wilton Republican Senator Tom Saviello, who voted against the original legalization bill. The proposal, introduced by Saviello on behalf of a coalition of groups, offers a 17.5 percent tax rate and upholds the opt-in requirement for municipalities regarding retail sales.

It also gives municipalities the right to impose their own fees and dole out licenses themselves in the absence of state action, and includes a three-year prohibition on social clubs. The proposal is a joint venture of groups on both sides of the issue, including Legalize Maine, the Christian Civic League and the Maine arm of the national organization Smart Approaches to Marijuana.

But while the state works to craft legislation, shifting federal guidelines create additional headaches for lawmakers and towns attempting to stay on the right side of the law. Sen. Katz, co-chairman of the Legislature’s Committee on Marijuana Legalization Implementation, said in an email Monday that “the memo from Attorney General Sessions has just added more uncertainty to our work.” Katz said the Committee would be working with Maine’s U.S. District Attorney Halsey Frank to determine what the recent changes at the federal level will mean for Maine. “We just need to know what the rules are and we will deal with it.  Just tell us the rules.”

In a statement on Tuesday, U.S. District Attorney Frank said that while “prosecution of drug possession cases has not been a priority,” his job is to “enforce federal law, not countermand it.” Frank said that although his office has “prioritized opiates, cocaine, crack and similar hard drugs” that he does not have “authority to categorically declare that my office will not prosecute a class of crime or persons.”

Governor LePage has long cited concern over conflicting federal guidelines as chief among his reasons for vetoing the bill that came before him in November. “Until I clearly understand how the federal government intends to treat states that seek to legalize marijuana, I cannot in good conscience support any scheme in state law to implement expansion of legal marijuana in Maine.”

A spokesperson for Governor LePage, Julie Rabinowitz, reiterated the Governor’s position in an email Monday. “Until there is more clarity at the federal level in terms of enforcement, people who own or invest in marijuana-related businesses may be putting assets at risk and people who use marijuana may run afoul of federal law.”

Tuesday afternoon’s meeting saw hours of testimony from groups on both sides of the issue, with many medical caregivers repeatedly urging leaders not to lump them in with legislation on recreational use. Under current federal law, the Justice Department is forbidden from using its funds to interfere with medical marijuana at the state level. Medical caregivers expressed fears Tuesday that if they were to be included alongside retail sales that this could open them to federal prosecution.

Attorney General Sessions has been vocal in his opposition to the prohibition, writing in a letter to Congressional leaders in May that “the Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

President Trump, who reauthorized the funding restrictions as part of a $1 trillion spending bill, added a statement saying “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed.” Some interpreted this as the President reserving the right to ignore the amendment if necessary.

However, Robin Rosenberg, owner of Main St. Medical, a glass shop and licensed medical marijuana facility, doesn’t see Session’s comments or his most recent memo as a threat to her business. “Overall I think this industry is like an avalanche-I think Sessions is going to be buried,” Rosenberg said. “It’s moving forward, it can’t go backwards now.”

Police Chief Glenn Moshier expressed a similar sentiment, and said that his office is focusing its efforts on preparing officers for when retail sales go into effect. This includes training for officers on recognizing impaired motorists and school education programs.

“We’ve really accepted the fact that for folks over 21 it’s legal, and we’ve turned our focus to how we can prevent danger to our youths and on our roads,” he said.

Moshier, who is a certified drug-recognition expert, says he wants to make sure any future legislation doesn’t harm the town.  “How do we make sure it doesn’t have a negative impact on our community?”

Tara Young was part of a panel discussion on marijuana alongside Moshier and other stakeholders in Ellsworth in November. Young works as Community Health Program coordinator for Healthy Acadia, which is one of the organizations working with the legislative Committee to craft the new bill. She said on Monday that the organization doesn’t take a political position on such issues, but stresses that she hopes the state  “can make good policy in between,” adding that “marijuana is harmful, particularly to people who are under 25 because their brains are still developing.”

Representative Louie Luchini, a Democrat from Ellsworth who sponsored a bill last year to close loopholes in the law, said he’s not yet sure what effect the Sessions memo will have on prosecutions in Maine.

“I believe this will give federal prosecutors more leeway to prosecute states with legal marijuana, if their resources allow for it,” Luchini said in an email Wednesday. “This will further complicate an already difficult issue, and could slow further movement on marijuana laws until the implications are fully understood.”

New Hampshire recently became the latest state to legalize recreational use of marijuana just five days after Sessions issued his memo. The New Hampshire law will not allow retail sales. Voters in Massachusetts have also approved legalization of recreational marijuana, although the law has not yet taken effect. Six states have legalized recreational marijuana: California, Oregon, Washington, Nevada, Colorado and Alaska, and twenty-nine states and the District of Columbia have legalized medical marijuana.

Kate Cough

Kate Cough

Kate covers the city of Ellsworth, including the Ellsworth School Department and the city police beat, as well as the towns of Amherst, Aurora, Eastbrook, Great Pond, Mariaville, Osborn, Otis and Waltham. She lives in Southwest Harbor and welcomes story tips and ideas. She can be reached at [email protected]