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How Montana's muddled marijuana law put providers and patients at risk—and how to fix it

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THE RAID

On the morning of May 18, 2016, two Drug Enforcement Agency convoys wound their way through Bozeman's outer suburbs. One drove to the Four Corners industrial park west of town, and the other to a rural northside home at 1340 Hidden Valley Road.

At Four Corners, agents executed a search warrant on the headquarters of Montana Buds, a medical marijuana dispensary network owned by Charlton Campbell with branches in cities across western Montana.

Based on information acquired from confidential informants, the DEA believed that Charlton Campbell, his business partner Michael Mason, his brother Jesse Campbell, and employee David Maples were conspirators in an interstate drug ring, in flagrant violation of state and federal law.

The DEA agents raiding the Four Corners complex, owned by Charlton Campbell and Mason, found about what one would expect at the state's largest medical marijuana dispensary: nearly 400 pounds of processed marijuana, more than 40 pounds of hash oil and edibles, a hash oil laboratory, more than 1,500 live marijuana plants, and tens of thousands of dollars in cash.

At Jesse's Hidden Valley home, agents found more than 100 marijuana plants and clones in an outbuilding, $80,000 in cash in the master bedroom closet, just under 35 pounds of harvested marijuana, 29 hash oil vape cartridges, and a stack of 30 registration cards documenting Jesse Campbell's patients.

As he would later testify in federal court, Special Agent Lee Herd, who executed the search warrant on Hidden Valley Road, didn't know the intricacies of Montana's medical marijuana law, and he didn't have to. The Supremacy Clause of the United States Constitution means that federal law, including the Controlled Substances Act, trumps state law, including the Montana Medical Marijuana Act.

Jesse Campbell's attorneys would claim that Jesse had on hand a legal amount of marijuana per patient, thus he had committed no crime under Montana law. In the past, most attorneys who have tried this tactic in such cases have seen judges shoot it down.

But a new legal precedent, established only a month before the Campbell brothers and their associates were indicted, established that growers and patients who can prove they followed state law can't be federally prosecuted as common drug dealers.

The Bozeman defendants would test that precedent for the first time, only to find the imprecision of Montana's medical marijuana laws to be a devastating liability.

ROHRABACHER, FARR AND MCINTOSH

In 2014, Orange County, California, Republican congressman and pot advocate Dana Rohrabacher got his wish. For more than a decade, Rohrabacher had been trying to pass federal legislation barring the U.S. Department of Justice from spending money to interfere with states' implementation of their medical marijuana programs.

Six previous attempts had died on the House floor or in committee, but in 2014 his Rohrabacher-Farr Amendment was attached without a vote as a last-minute rider to a trillion-dollar spending bill. The bill was signed into law by President Obama that December. The amendment effectively prevents the DOJ from prosecuting medical marijuana providers and patients in states with medical marijuana laws on the books, including Montana.

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The amendment was tested and prevailed last August, when 10 federally indicted medical marijuana defendants, in a group appeal of the rulings in U.S. district courts in California and Washington, which had denied the Rohrabacher-Farr argument, came before a Ninth Circuit council of judges. In what became known as the McIntosh ruling, the Ninth Circuit set legal precedent by agreeing that the Rohrabacher-Farr amendment applied, sending the cases back to the lower courts.

Medical marijuana providers facing prosecution under the Controlled Substances Act in states within the Ninth Circuit (including Montana) can now argue that if they aren't breaking state law, the feds are barred from indicting them.

The caveat is that if the feds can prove growers and patients were not in "strict compliance" with state law, they're vulnerable to prosecution. While proving compliance may be easy enough in states with stringent regulations, Montana's vague and poorly written medical marijuana laws have fluctuated wildly since their first introduction, and particularly in the last year. More often than not, what is and isn't legal within the expansive gray areas of Montana's marijuana law is defined in the courts, after a provider or patient is arrested. One of the Bozeman cases would reveal that Montana law doesn't even define what "usable marijuana" is.

MONTANA MEDICAL MARIJUANA HISTORY

Montana voters first legalized medical marijuana in 2004 through a ballot initiative. The law contained few regulations and presented would-be providers and card seekers with minimal barriers to entry. By 2011, with around 30,000 registered cardholders in the state, many legislators agreed that the system was being abused by healthy people looking to get high recreationally.

Instead of building a robust regulatory system, Republican lawmakers pushed through a draconian quasi-repeal restricting providers to three patients each and banning providers from accepting payment for their product—a death knell for any business.

The bill was immediately challenged in court by the Montana Cannabis Industry Association, and some provisions, like the prohibition on payment, were eventually dropped. During the next five years there was little legislative action on the state's still-dysfunctional medical marijuana system, even as other states moved further toward decriminalization, some even legalizing recreational sales.

In the spring of 2016 the Montana Supreme Court decided there were no legal grounds for preventing the three-patient limit from going into effect, and that restriction was enacted on June 30, cutting off 93 percent of the state's roughly 13,000 patients from providers, who were forced to drop them overnight.

The MTCIA led the charge to pass a citizen's initiative repealing the patient limit on the November 2016 ballot, but the law's drafters defined its implementation date as July 1, 2017, leaving patients in the the lurch for another eight months.

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