PHOENIX - A new memo from a top Justice Department official could undermine the chances of ever setting up a system of medical-marijuana growers and dispensaries in Arizona.
In a memo, Deputy Attorney General James Cole reiterated the conclusion of an earlier memo from another official, that his agency is unlikely to use its resources to go after individuals who use marijuana "as part of a recommended treatment regimen consistent with applicable state law." And Cole said the same remains true of caregivers who handle the drug.
But Cole said Justice has noticed several states have enacted laws to allow "multiple large-scale, privately-operated industrial marijuana cultivation centers," some of which could have revenues of millions of dollars a year.
"The (earlier) memo was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law," Cole wrote. He said anyone in the business of cultivating, selling or distributing marijuana is violating the federal Controlled Substances Act, "regardless of state law."
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That also applies to those "who knowingly facilitate such activities," he said.
Arizona Attorney General Tom Horne said that reinforces one of his main fears.
"The biggest concern has been whether or not government employees are facilitating distribution by processing the licenses" of those who want to grow and sell the drug. "And there's also the concern, obviously, for the dispensaries themselves."
In fact, Horne said, Cole's memo actually appears to represent a step back from seeming assurances previously that federal prosecutors will take a hands-off approach.
He noted the 2009 memo by Deputy Attorney General David Ogden to federal prosecutors suggesting that, as a general matter, they should not focus their efforts "on individuals whose actions are in clear and unambiguous compliance" with existing state laws allowing for the medical use of marijuana.
Ryan Hurley, whose firm represents prospective marijuana dealers, disagreed.
"It's consistent with the advice we've been giving our clients since Day 1," he said, that would-be dispensary owners should not see the state's medical-marijuana law as a shield from federal prosecution.
Hurley also noted Cole's failure to specify in his memo that state employees could be prosecuted should provide comfort to Horne and state health director Will Humble. Horne, however, said that if Cole wanted to signal that prosecution of state workers was a low priority, like that of marijuana users, he would have said that.
For the moment, though, nothing will change.
In May, Humble said he and Gov. Jan Brewer decided not to process or accept applications from those who want to grow and sell the drug amid fears of federal prosecution. Brewer and Horne filed suit in federal court, asking a judge to decide if Arizona can proceed with its medical-marijuana program despite federal laws which make sale, possession and transportation of the drug a felony.
There has been no action in that case.
Would-be dispensary owners have filed their own suit in Maricopa County Superior Court to force the state to start issuing licensed, in compliance with the law voters approved.
In analyzing the new memo, Hurley said one thing that remains a big unknown is what federal prosecutors consider "large-scale" cultivation and sales operations.
Laura Oxley, spokeswoman for the state Department of Health Services, said the law voters approved in November has no limit on how large a cultivation facility can be.
She said the only limits are practical, with any outside operation having to be made secure, surrounded by a 10-foot high concrete wall with a metal gate.
Similarly, she said, there are no size limits on dispensaries.