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New law for an old drug

Part two of the series looks at how law enforcement agencies and local governments are preparing to deal with the use and dissemination of medical marijuana.

While the Montana Medical Marijuana Act is an easy read, it doesn’t take long to figure out that the issues involved are much more complicated than one might think.

After the state legislature passed Initiative 148 in 2004, change came slowly until last fall. The recent boom in Montana’s medical marijuana industry can most likely be attributed to an October 2009 statement by the Obama administration that the federal government would not seek to arrest medical marijuana users and suppliers as long as they conform to state laws. Still, under federal law, marijuana is a Schedule I drug, and drug offenders can be prosecuted if caught. The situation is especially confusing on the Flathead Indian Reservation, where tribal, local, state and federal governments all have some jurisdiction.

Tribes mirror federal position

In Montana, the production, sale, distribution and use of medical marijuana is legal — unless you are a member of the Confederated Salish and Kootenai Tribes living on the Flathead Reservation. After Montana legalized marijuana for medicinal purposes in 2004, medical marijuana remained illegal on the Flathead Reservation. In October 2005, Tribal Council solidified that decision by voting to not recognize medical marijuana as legitimate medicine. Today, it remains illegal for a tribal member to use, sell or grow medical marijuana on the reservation — even if he or she registers with the state as a medical marijuana caregiver or patient. 

Brian Fyant, a drug investigator with CSKT Law and Order, said the decision was a “reaction to the fear of losing federal funding.”

CSKT Communications Director Rob McDonald added that Tribal Council and leading medical professionals within the tribe have recently begun discussions regarding the legalization of medical marijuana. Currently, they have not reached a new decision regarding medical marijuana use among tribal members living on the reservation, and McDonald suggested that it will take time to mull over the issue and look at it from every side. 

But the official position of the tribal police force still sides with that of the federal government: if you use, you lose. A tribal member caught using or growing medical marijuana on the Flathead Reservation is subject to prosecution in tribal court.

But Fyant described tribal police as taking a more lenient stance on medical marijuana use. 

“If they are in their home smoking it, we are not going to know or care,” Fyant said.

He added that most offenders are charged with possession of marijuana as a secondary offense to a primary charge, such as driving under the influence of alcohol. 

The reservation’s historic problem with addictions and substance abuse also complicates the tribes’ discussion of medical marijuana.
 
“No one is arguing that our community hasn’t struggled with addictions,” McDonald said. 
 
Fyant compared the CSKT culture committees’ reactions to the issues of medical marijuana to an attempt to introduce peyote to the reservation as a cultural element a few years ago.
 
“This is not part of our culture — we don’t need another drug,” Fyant said. “There are enough drugs as it is.”
 
Since 2005, the amount of marijuana seized by tribal police has dropped significantly from $501,000 in 2005, to $50,885 in 2008. The dramatic decrease is due indirectly to an increase of medical marijuana providers, Fyant believes.
 
“They have permits to grow it, and they are non-(tribal) members,” he said. “Unless I have good, strong intel, the investigation stops right then and there.”
 
Fyant said the tribal position on medical marijuana complicates the process of investigation of illegal use of marijuana and creates more work for the police force.
 
“It makes it harder for someone doing my job,” Fyant said.
 
City ordinances
 
Under Montana law, a caregiver — someone, 18 or older, licensed to manage the well-being of a person with respect to the medical use of marijuana — may grow six marijuana plants and possess 1 ounce of usable marijuana for each of his patients. And according to the Montana Department of Public Health and Human Services list of answers to frequently asked questions about medical marijuana, “State law is silent on where grow sites can be located.” 
 
Nor does the Medical Marijuana Act address whether cannabis can be grown or possessed near schools, which are designated as “drug-free zones” within a 1,000-foot perimeter. Such gray areas in the law leave the regulation of growth, sale and use up to local governments, and in Lake County, cities are scrambling to stay on top of these emerging concerns.
 
Both Polson and Ronan recently passed temporary ordinances restricting the sale and growth of medical marijuana in the respective towns. At its March 8 meeting, the Ronan City Council passed a moratorium restricting medical marijuana businesses to the highway commercial zone and excluding them from the line of sight from any schools in the area. The ordinance will last for an interim period of up to six months, and is based on a similar ordinance in Whitefish. Medical marijuana providers will have to apply to the city of Ronan for an appropriate permit and pay a fee of $25 in order to grow or sell the substance. 
 
In the meantime, the council assigned drafting a new ordinance with different fees to the planning board, which will then provide a recommendation to the council.
 
“Basically, we’re in an information-gathering stage,” Mayor Kim Aipperspach explained. “I couldn’t guess one way or the other right now (what will happen).”
 
Aipperspach added that the main concern with allowing medical marijuana businesses in town seems to be the proximity to schools, something the planning board will examine during the drafting process.
 
Polson City Commissioners voted on March 15 for a similar emergency interim zoning ordinance to allow the city time to “study the effect of the opening of establishments that grow, sell or distribute medical marijuana or paraphernalia; and, to make recommendations concerning new zoning regulations that could be adopted to better regulate such establishments …” (The full text of the ordinance can be found at www.cityofpolson.com on the first page. Just click on Emergency Medical Marijuana Moratorium.)     
 
“My only concern is that we zone (medical marijuana),” Polson City Manager Todd Crossett said.
 
Crossett explained the intention of the ordinance was “not as a delaying tactic” but to allow the issue to go through the city’s zoning process, which will be overseen by Polson City Planning Director Joyce Weaver. The ordinance will last for six months.
 
Weaver explained the lengthy zoning process, starting with the Polson Development Code, the body of existing rules and regulations for zoning and land use in Polson. A medical marijuana ordinance would require an amendment to the Polson Development Code. 
 
Weaver said the planning department has tentative plans to get a committee together to help run public meetings on the medical marijuana issue. The public meetings would be advertised so people can attend and give input into what Polson city residents want in an ordinance.
 
Weaver said such questions as, “Does the public want medical marijuana in the city of Polson?” and, “If so, where in the city?” as well as other details, will be discussed.
 
Weaver will then write a proposal for the Polson Development Code and present it to the City County Planning Board.
 
Then the CCPB will hold a public hearing, maybe even two, on the proposal and review its findings. Weaver said the CCPB also had the right to table the amendment for a month to get further information or for more in-depth study before voting on a recommendation for the Polson City Commission. 
 
Whether the board’s recommendation is for or against allowing medical marijuana businesses in town, it’s “just a recommendation,” Weaver said. 
 
Finally, Weaver will take the proposal to the city commissioners, and again, a public meeting will be advertised. When the proposal appears on the city commission’s agenda, Weaver will present it and advise the commissioners on the CCPB’s recommendation. The commissioners can then vote on the proposal or table it. 
 
Weaver said the process can take quite some time, but stressed that the public needs to give input, either at public meetings and hearings or in writing to Polson City Hall.
 
While medical marijuana sales hasn’t become an issue yet in St. Ignatius, city council members said a zoning ordinance is probably the first step they’ll take.
 
“I’m really concerned,” councilman Ray Jensen said. “I know it’s legal, but it comes down to ‘What happens?’” 
 
While Jensen noted that the state regulates medical marijuana providers, there’s always the possibility that once the marijuana is in the patient’s hands, it could be “redistributed.” 
 
“It’s just a never ending concern,” Jensen explained. “I’d like to see (medical marijuana businesses) far enough from the schools so we don’t have any problems.” 
 
Mayor Charley Gariepy agreed, noting that he would like to see a zoning ordinance keep such businesses away from churches and schools. He and Jensen both feel it’s only a matter of time before someone decides to open a medical marijuana shop in St. Ignatius. Meanwhile, the council is “just trying to get a handle on it,” through research and considering actions other towns like Whitefish have taken on the issue, Jensen said.
 
“(Medical marijuana businesses are) going to happen,” he added. “You just can’t stop it.”
Lake County Commissioner Paddy Trusler said medical marijuana hasn’t really appeared on the commissioners’ radar yet, so they haven’t discussed a position on the issue.
 
Law enforcement
 
Zoning and safety are top concerns for local law enforcement, although officials said they haven’t encountered problems arising specifically from the sale or use of medical marijuana yet. 
 
“I don’t think it’s going to change our job all that much,” Ronan Assistant Police Chief Art Walgren said. “(But) because it’s a new area, we don’t have all the solid answers.”
 
He hopes to get some of those answers later this week when three Ronan Police officers return from a state Division of Criminal Investigations conference in Helena. At the conference, officers will attend breakout groups on dealing with medical marijuana issues, where they’ll learn how to identify medical marijuana cards and verify their validity with the state’s database, and more about where and when cardholders are permitted to use marijuana. 
 
Since the law is relatively new, and Montanans are only recently beginning to exercise their medical marijuana rights, “a lot of questions will come down to court decisions in the future,” Walgren added.
 
Around Lake County, one thing is for sure: people don’t want to see marijuana shops popping up around their homes or schools.
 
“I don’t believe storefront businesses belong in neighborhoods,” Polson Police Chief Doug Chase said. “I don’t believe they should be near a school.”
 
Chase added there might be resistance to storefront businesses providing medical marijuana in the downtown Polson business district, although Missoula has storefront businesses in its main business district.
 
“I believe (medical marijuana businesses) should be alarmed if they’re storefront businesses,” Chase said, maybe even including a panic alarm. 
 
Thefts from medical marijuana businesses could result in a large amount of marijuana on the loose, and officers’ safety needs to be considered, Chase explained.
 
“(Medical marijuana business) is gonna happen, it’s just a question of when,” Chase said.
 
Issues associated with the medicinal use of cannabis will continue to rise as the rubber of Initiative 148 meets the road. The next article in this series will examine the nuts and bolts of the Medical Marijuana Act, including the process of applying for a registry identification card and what is required of caregivers.
 
(Editor's note: This article is part of a series that provides an overview of where medical marijuana use stands and how many questions remain about its use, sale and distribution, particularly within Lake County and the Flathead Indian Reservation. These articles will explore the effects medical marijuana is having in the community, as well as ask some of the questions that remain unanswered.)

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