Montana’s top federal and state judicial officials have not pledged, as some other states’ officials have, to protect law-abiding medical marijuana patients and providers from federal indictment following U.S. Attorney General Jeff Sessions’ retraction of Department of Justice guidelines deprioritizing interference with state marijuana laws.
Those guidelines, left over from the Obama administration, include the Cole Memo, a policy introduced in the wake of Washington’s and Colorado’s legalization of recreational marijuana in 2013, and the 2009 Ogden Memo, which followed an uptick in state legalization of medical marijuana. The memos instructed federal prosecutors not to target citizens following state recreational or medical law, respectively, and to instead focus on black-marketeering.
The Ogden Memo provided a bureaucratic check on the DOJ from prosecuting patients and providers, but a second check in the form of congressional law, the embattled Rohrabacher amendment, bars the DOJ from funding indictments of citizens following states’ medical—but not recreational—marijuana law.
Washington state’s Democrat attorney general, Bob Ferguson, pledged Jan. 6 to fight federal interference with his state’s marijuana programs, but Montana Attorney General Tim Fox, a Republican like Sessions, released a statement Friday saying only that the new guidance to federal officials does not affect how Montana police enforce state marijuana laws. Fox’s office did not respond to requests to address the question that patients, providers and states’ rights advocates most want answered: Will Montana’s attorney general defend law-abiding citizens from federal indictments?
It’s unclear if Montana’s top federal cop, United States Attorney Kurt Alme, will follow the lead of Colorado’s U.S. attorney in continuing to defer to the guidance of the now-rescinded memos. In a statement on Jan. 6, Alme said his office is guided by the principles of the U.S. attorney general for marijuana prosecutions, but specified that he will continue to focus “in particular on identifying and prosecuting those who create the greatest safety threats to our citizens and communities”—language similar to that contained in the Cole and Ogden memos.
But that’s not a choice Alme or other federal prosecutors will be called to make regarding medical marijuana, at least not yet. The U.S. Attorney for Colorado’s stand is preemptive for the medical community, because as long as the Rohrabacher amendment remains law, U.S. attorneys can’t spend money interfering with state medical marijuana laws.
Alme said in a telephone interview on Jan. 6 that enforcing federal marijuana laws includes enforcing Rohrabacher amendment restrictions on his own prosecutorial authority, and that for now Montana’s medical marijuana patients and providers needn’t fear prosecution, “as long as people are fully in compliance” with Montana law.
He declined to say whether he would follow his Colorado colleague’s example in the event that Rohrabacher becomes defunct, saying, “We’ll cross that bridge when we come to it.” The Rohrabacher Amendment has been prevented from passing in the House so far this year, and if medical marijuana advocates can’t preserve a version passed by the Senate in the upcoming closed House-Senate budget conference committee by the end of the month, the amendment’s protections will disappear.
But even with the Rohrabacher amendment in place, federal legal precedent set in Montana last year demonstrated that patients and providers must be in “strict compliance” with state marijuana laws to avoid federal indictment—a near impossibility due to gray areas in Montana law.
Montana Attorney General Tim Fox’s office did not respond to requests to address the question that patients, providers and states’ rights advocates most want answered: Will Montana’s attorney general defend law-abiding citizens from federal indictments?
Fourteen months after Montanans revived medical marijuana via ballot initiative, and nine months after the legislature passed a bill to supervise it, the Montana Department of Public Health and Human Services has yet to implement new regulations designed to keep legal patients and providers from being mistaken for black-marketeers, and vice versa.
The new regulations include requirements that the health department develop a seed-to-sale tracking system, among other accountability measures.
But the health department has yet to implement the regulatory frameworks. The official leading the process, Quality Assurance Division Administrator Brian Watson, was relieved of responsibility for the program in December, and the regulations are now being implemented directly under the auspices of DPHHS Director Sheila Hogan’s office.
“Because this program covers a breadth of issues, requiring high levels of interagency cooperation, we feel repositioning the program offers the best opportunity for success,” health department spokesperson Jon Ebelt says.
For now, Montana providers are still using temporary grow licenses, and patient paperwork is backlogged beyond the required 30 days that DPHHS has to process it after the department was flooded with patient applications—more than 2,000 between September and November—as patients driven out of the system by patient limits and legislative uncertainty return.
“We’re hiring temporary workers to process the incoming mail at a much faster pace,” Ebelt says.
The health department has an April deadline for getting the new regulatory frameworks up and running. Under that schedule, even if the Rohrabacher amendment is preserved at the end of January for another year, Montana patients and providers will continue operating for months within a state program full of enough pitfalls to expose them to potential federal prosecution.
When Alme says that Montanans who are “fully in compliance” with the state’s medical marijuana law have nothing to worry about at the moment, he’s referencing a federal legal precedent set in Montana last year. Despite a federal judge’s finding that a Bozeman grower indicted on drug charges made every attempt to follow state law, he threw out the defendant’s Rohrabacher defense. The judge found that even a matter of fact as elementary as the amount of marijuana the defendant was allowed to possess was not accurately defined by Montana law.
The Montana Cannabis Industry Association led the charge on the ballot and in the legislature to clarify those gray areas over the last two years. The goal was to bring state law into line with the federal guidelines that Sessions just repealed, and MCIA spokesperson Kate Cholewa says the future of federal prosecution in Montana could go either way.
“If there were to be a shift to aggressive enforcement of federal prohibition, on one hand, Montana is small potatoes compared to states like Colorado or California. On the other hand, if the feds wanted to send a message to other states, Montana is a cheap date.”
--This article was updated Jan. 22 to correct the name of Washington State's attorney general.--