Despite a rescinding of Obama-era orders allowing for the state-by-state legalization process of marijuana earlier this month, the relationship between federal and Alaskan agencies seem unlikely to change at the moment.
On January 4 Attorney General Jeff Sessions issued a memorandum to all United States Attorneys rescinding guidance articles previously issued during the previous presidential administration. This included the memo issued by then-Deputy Attorney General James Cole in 2013.
The Cole memo had laid out a more hands-off policy regarding drug enforcement when it came to state-level legalization of recreational marijuana. While still considered a controlled substance at the federal level, the memo outlined eight problem areas where federal legal intervention may occur, but otherwise gave its consent for retailers and distributors to operate within robust state guidelines. The memo ultimately served as the benchmark against which state actions such as those taken by the Alaska Alcohol and Marijuana Control Office have been measured, and allows for transport between licensees within state boundaries.
AMCO was created following voters’ passage of Proposition 2 in 2014, allowing for the regulated legalization of recreational marijuana. Regulations to oversee the transition were started by the Alcoholic Beverage Control Board in April 2015, with a separate board formed for marijuana in July and the office taking on a combined role to both substances. The Marijuana Control Board has since the middle of 2016 approved 164 licenses for businesses across the state, ranging from cultivators and retailers to processors and manufacturers of the drug.
With the Cole memo’s rescission, the future of the state’s regulatory approach to cannabis has been rendered uncertain. Sessions’ decision specifically cited five other memoranda as well, providing district attorneys guidance on subjects ranging from authorizing medical usage of the drug to dealing with finance in the burgeoning industry. In his memo, Sessions noted that marijuana has been generally prohibited by the Controlled Substances Act, and that current federal law reflects “Congress’s determination that marijuana is a dangerous drug and that marijuana activity is a serious crime.”
However, the Attorney General suggested the Justice Department has “finite resources” at its disposal, and directed prosecutors to weigh their priorities depending on the seriousness and cumulative impact of crimes, as well as the deterrent effect of criminal prosecution.
For its part, the office of Alaska District Attorney Bryan Schroder issued a statement suggesting a status quo:
“The U.S. Attorney’s Office for the District of Alaska will continue to use the long-established principles of federal prosecution to determine what cases to charge. One of the key principles is to follow federal law enforcement priorities, both at the national and local levels. The highest priorities of the U.S. Attorney’s Office in Alaska are consistent with those of the Justice Department nationally: combating violent crime, including as it stems from the scourge of drug trafficking. Consistent with those priorities, the U.S. Attorney’s Office released an anti-violent crime strategy in October of the past year. We will continue to focus on cases that meet those priorities.”
The office had no further comments to add regarding the subject. But the strategy it refers to is specific to curbing a recent rise in property and violent crimes in Alaska, and addressing opioid misuse. To that end, the department outlined five primary components it will be focusing on, including calling out a federal duty agent to every murder and shooting scene, creating a ballistics task force to better review evidence from violent crimes, partnering more closely with the Alaska State Troopers in rural communities, initiating a project to identify violent offenders, and on curbing opioid abuse across the state.
MCB chair Peter Mlynarik had announced his resignation from the board once the Sessions memo was released, citing legal uncertainty of the state’s position. AMCO’s own response has been more cautious in assessing the Sessions memo’s intent, but does not predict any change in policy. Following Sessions’ announcement, it released a statement on its website:
“AMCO cannot provide legal advice to applicants or licensees, nor can we advise whether you should continue your application or alter your business practices. The Department of Law is still working to evaluate what the impact of rescinding the Cole memorandum will be for Alaska. AMCO will continue to implement state law in close conjunction with the Department of Law, and as new information is available, will make every effort to inform licensees and the public.”
Area business owners did not seem to be too concerned about the legalization process reversing course.
Susan Burrell, owner of The 420 in Petersburg, thought there would not be much of a change forthcoming. “Being in Southeast Alaska, I do not believe they will tackle me, the little guy, and although the Cole memo allowed for banks to provide service for marijuana businesses, none here in Alaska have ever done so.”
From a regulatory perspective, she cited AMCO’s swift response to businesses that fail to comply with state regulations as evidence the program has been working as it should.
“The AMCO has been doing a great job with the enforcement of the laws set forth by them,” Burrell said.
Her experience extended also to the local level: “The Borough of Petersburg has been a pleasure to deal with in regards to every aspect I have had with them. We set our alarm system off a couple of times and the Petersburg Police Department was on the spot in answering it. Residents of Petersburg have been very gracious and we have had no repercussions to having our little spot in downtown Petersburg.”
One area she would like to see improved on would be efficiency with the state’s processing of applications. “I think they need to hire more people though, as their licensing process has been really slow this last six months.
In Wrangell, business owner Kelsey Martinsen still has applications being processed for Happy Cannabis, a retail and small cultivation facility. City manager Lisa Von Bargen reported earlier this month that Martinsen’s building plans for the downtown shop had finally been approved by the Fire Marshal, and that the city has subsequently issued a building permit. A letter has been sent to AMCO informing them his local permits are in order.
Martinsen currently has three licenses under review by the MCB. One cultivation license has been approved pending inspection, while a retail license has been delegated to the AMCO director’s office pending completion of additional requirements. A concentrate manufacturing permit application is only in the initial stages.
Asked about Sessions’ memo, Martinsen’s confidence in Alaska’s legalization process was not shaken. “I think he’s a little late on that,” he commented, pointing to some 30 states now that have some level of regulation for cannabis.
While his permit applications are being processed, Martinsen was unsure whether he still plans to open his store, or what the possible timeline might be. “We don’t know at this point.”
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