Fife responds to pot-ban challenge, will argue that federal law trumps I-502

The City of Fife is taking a legal stance that other Washington cities so far have avoided : It will use the court system to call out the contradiction between state and federal law in the uncharted territory surrounding recreational marijuana.

Fife this week responded to a challenge to the city’s ban on marijuana businesses from a prospective pot retailer. The city argues that the drug is “still criminal, in virtually all cases, under federal law regardless of compliance” with state Initiative 502, which was approved in 2012 and supported by a majority of Fife voters.

City Attorney Loren Combs told The News Tribune on Wednesday the city will argue that federal prohibition of marijuana trumps I-502, which created a regulatory system for recreational pot producers, processors and retailers.

In response, the state Attorney General’s Office announced Thursday it will “vigorously” fight that claim.

The AG’s release notes the potential monumental impact of the case. If Fife’s stance is affirmed in court, it said, “the marijuana legalization effort would be destroyed.”

Marijuana advocates and opponents alike have waited for a jurisdiction to challenge the discrepancy between state and federal laws.

Alison Holcomb, author of I-502 and criminal justice director of the American Civil Liberties Union, has consistently maintained that federal law doesn’t pre-empt state law. The ACLU was prepared to intervene in a legal challenge against a defacto pot ban in Wenatchee before that city sidestepped the issue, fearing a costly legal battle.

Instead, Wenatchee relied on an advisory opinion from state Attorney General Bob Ferguson for its defense against a prospective pot retailer. Ferguson said in the January opinion that I-502 doesn’t prevent local governments from banning marijuana operations.

Other South Sound governments – including Pierce County, Lakewood and Sumner – have banned marijuana operations in one form or another.

But Fife is the first city prepared to argue the contentious question of federal supremacy in court.

“The law is the law,” Combs said. “The City Council has directed us to uphold the law.”

Combs said he anticipates the ACLU would intervene on behalf of two prospective pot retailers who secured state lottery slots for licenses in the north Pierce County city.

Doug Honig, communications director for ACLU of Washington, wouldn’t confirm or deny Wednesday whether the group plans to intervene in the challenge against Fife’s marijuana ban.

“We think that federal law does not pre-empt our state’s marijuana law, nor can individual cities opt of out of state law,” Honig said in an email. “We’re taking a hard look at what can be done to change Fife’s ordinance.”

The Attorney General’s Office announced last week that it was intervening in the lawsuits in Fife and Wenatchee, not to take sides on the issue, but to “uphold the will of the voters.”

Ferguson’s office released a statement Wednesday in response to Fife’s decision, stressing that it will “vigorously defend I-502” and argue against the federal pre-emption claim.

“The city claims that the state law is invalid because it conflicts with federal law,” according to the statement. “If a court accepts that argument and it is upheld on appeal, it would mean the end of the state system for legal marijuana sales in Washington.

“This case and others like it threaten the heart of Initiative 502,” Ferguson said in the statement. “We want to participate in all cases like this to defend the will of the voters.”

The Fife City Council on July 8 approved an ordinance “prohibiting all business uses involving marijuana.”

The stated purpose of the ban is to “promote the public health, safety, morals, and general welfare” of the city, according to the ordinance. It notes that the state constitution allows local governments to make and enforce, within limits, their own regulations not in conflict with “general laws.”

The ordinance doesn’t specifically make reference to conflicts between state and federal marijuana laws. However, it leaves open the option for the City Council to revisit the “dynamic issue.”