I must admit, writing an agricultural law blog post about marijuana was not something I expected to ever do when I started this blog. Currently, however, there are controversies going on in Oregon and Missouri about whether the right to farm includes the right to grow marijuana. These controversies raise interesting issues likely not ever considered by those agricultural groups and producers who most often support right to farm laws.
Medicinal marijuana use has been legal in Oregon for years, and recreational possession becomes legal on July 1, with licenses available to growers in 2016. Some officials are concerned about the impact that growing of marijuana may have on neighboring landowners. Oftentimes, neighboring landowners complain of odor when marijuana farms are located on adjacent property, which some neighbors report smelling like a skunk.
One potential issue that could arise in this controversy is the state’s Right to Farm statute. As you may recall from this prior blog post, all 50 states have some form of a Right to Farm statute. These statutes are designed to protect agricultural operations by providing an affirmative defense to farmers facing nuisance lawsuits filed by neighbors. Under Oregon law, the statutory protection applies to “farms” which are defined as “any facility, including the land, buildings, watercourses and appurtenances thereto, used in the commercial production of crops, nursery stock, livestock, poultry, livestock products, poultry products, vermiculture products, or the propagation and raising of nursery stock.”
Would this include growing marijuana with a state-issued license? In at least one county, officials say that the Right to Farm statute will likely apply and offer protection to marijuana growers. At the very least, it is likely that, if faced with a nuisance suit over odor, a marijuana farmer could invoke the statutory protections offered by the Right to Farm statute.
Last year, Missouri voters passed an amendment to the state Constitution known as the “right to farm” amendment. Unlike the Right to Farm statute discussed above that offers protection against only nuisance suits, this Constitutional Amendment is much broader, stating that “the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state…” For more details, click on this prior blog post.
Recently, several criminal defendants charged with growing marijuana have sought dismissal of their cases based on the argument that they have a constitutional right to grow such marijuana under the right to farm amendment. For example, a Jefferson City woman raised her constitutional right to farm as a defense after she was arrested and charged with growing marijuana plants in her basement. Her attorney argues that the right to farm amendment prohibits the Legislature from declaring what may and may not be grown in the state. [Read article here.] Thus far, it appears that no court has yet issued a ruling on this issue.
How will these issues play out? Only time will tell.