January 2011
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Medical marijuana on federal lands: What are the regulations?

By Jim Mimiaga

The use of marijuana for medical purposes has become legal in three of the Four Corners states, but because the drug is still banned federally, it remains illegal on national- forest land, in federal housing and on some Indian reservations.

New Mexico, Colorado and recently Arizona all have passed medical-marijuana laws allowing residents with certain ailments – and a doctor’s recommendation – to obtain a license allowing limited possession, use, cultivation and purchase of marijuana.

However, the director of a group that advocates for the legalization of marijuana for adults reminds holders of medical-marijuana cards that the forbidden foliage is technically illegal at any location in the country because the federal government does not recognize the medicinal use of marijuana.

“Really, anywhere in the country it is still illegal,” said Mason Tvert, director of Safer Alternative for Enjoyable Recreation (SAFER), “so there is no guarantee” that a person holding a medical-marijuana card will be safe from prosecution.

Especially on federal property, users of MMJ should inhale with caution. Every year citations are issued for people smoking pot on national-forest lands in Colorado, including in the San Juans, despite state permission for its limited use, said Brian Vicente, a lawyer with Sensible Colorado, which monitors and promotes MMJ laws.

“We hear from five or six medical-marijuana patients per year who were cited for smoking marijuana on federal lands, usually at a designated campsite,” Vicente said. “In court the charges are often dismissed because it is not considered a priority.”

That is largely due to a national directive by President Obama instructing federal attorneys to avoid using funds to prosecute the legitimate sale and use of medical marijuana in states where it has been legalized. The directive, called the Ogden memo, is not legally binding, and it is still up to the officers’ discretion whether to cite users of MMJ.

“When tickets are issued on federal land, we see this as federal agents not listening to the will of Washington, so it would be worth considering fighting the ticket by going to court and holding up the memo that medical-marijuana patients are not supposed to be prosecuted,” Vicente said.

Local national-forest policy may reflect some leeway regarding Colorado’s medicinal use of marijuana.

Asked about enforcement on the forest, Ann Bond, San Juan National Forest spokesperson, would only recite this statement regarding the issue:

“Possession of marijuana is still illegal under federal law and applies to federal lands, and citizens have the same rights to privacy on federal lands as they do off of federal lands.”

In other words, the message may be that holders of MMJ cards should keep a low profile and consume the drug within a private setting such as a tent or camper, not out in the open such as on a raft, in a vehicle or on a trail.

Tribes grapple with issue

If the legalities involved in using medical marijuana on public lands are unclear, they are even more so when it comes to MMJ on tribal lands.

The Four Corners has numerous Indian reservations, including the Ute Mountain and Southern Ute reservations in Colorado, and Jicarilla, Hopi and Navajo nations in New Mexico and Arizona. Those lands are managed in part by the Bureau of Indian Affairs, under the U.S. Department of Interior, but they are also considered sovereign nations under tribal government control.

Sovereign status allows tribes to adopt state laws or not, to some extent. Tribes within the Four Corners states that allow medical marijuana either do not honor the laws or are just beginning to address the issue, according to an investigation by the Free Press.

For the Southern Utes, the federal jurisdiction and BIA funding negate Colorado’s marijuana laws, said Sgt. Matt Taylor of the tribe’s police department.

“Having a medical-marijuana card on the Southern Ute reservation will do you no good because [MMJ] is not recognized federally, so you will be charged,” said Taylor, adding that citations have been issued recently.

“A guy had his card on him but still received a ticket because those cards will not be honored.”

Attempts to determine the Ute Mountain Ute tribe’s policy on medical marijuana were unsuccessful.

For other tribes, the subject has not been considered or is under review.

“You are the first person that has ever brought it up,” laughed Sgt. Joey Garcia of the Jicarilla tribal police in New Mexico. “We’ve never come across a situation like that, so we are not really sure if we recognize those laws or not. It is something that the tribal council would have to decide.”

An assistant in the Jicarilla tribal office said honoring New Mexico’s medical marijuana laws has never been considered by the council, but would be discussed if the issue arose.

Much of northern Arizona, a state which approved medical marijuana last November, contains the Navajo Nation, whose leaders are just beginning to grapple with the issue.

A task force including representatives of law enforcement, criminal courts and the health and social welfare departments is being formed to come up with a policy, or legislation regarding medical marijuana on the reservation, said Patsy Yazzie of Navajo Nation legislative services.

“There have been recent meetings about it with our police because of Arizona passing the law, but nothing has been adopted so we’re still in the planning stages,” Yazzie said.

“It sounds like what is going on is that tribal members living off of the reservation get their medical marijuana prescription and then come back onto the reservation.”

The Flathead Indian Reservation, located in northwest Montana, does not recognize that state’s medical-marijuana laws and considers use, distribution and possession of the drug a criminal offense. According to the Missoulian newspaper, tribal elders with the Salish, Kootenai and Pend d’Oreille peoples on the reservation decided last May that marijuana has no cultural significance and that “we as a people have other indigenous means to deal with pain.”

Interestingly, county attorneys there warned that non-tribal residents who provide medical marijuana to Indians on the reservation can be charged with felony distribution because of the tribe’s decision. It was advised that non-Indian MMJ providers within the Flathead reservation boundaries ask customers about tribal affiliation before supplying marijuana.

Allowed at VA clinics

While the federal government asserts medical marijuana is a prohibited substance, it has compromised by allowing patients treated at Veteran Affairs clinics and hospitals to use it within the 15 states that have legalized the drug, according to a directive issued last summer.

The new guidelines reverse a policy that veterans could be denied pain medication and benefits if they were caught using medical marijuana. A letter, published by the Associated Press, from Dr. Robert A. Petzel, the VA undersecretary of health, states: “If a veteran obtains and uses medical marijuana in a manner consistent with state law, testing positive for marijuana would not preclude the veteran from receiving opiods for pain management.”

The federal government has been less lenient when it comes to patients using medical marijuana within federal housing complexes.

The Santa Fe New Mexican reports that Robert Jones, a 70-year-old cancer patient who grows and uses medical marijuana under a state license, was informed in October that he would no longer receive a federal housing subsidy for his apartment in Las Vegas, N.M., because the drug remains illegal at the federal level. He is appealing the decision.

In Michigan, a state where MMJ is legal, federal housing authorities are also cracking down on residents of subsidized-housing facilities who use the drug on the premises. Residents face eviction within 24 hours if caught with medical marijuana, regardless of whether they are complying with state law. According to a memo obtained by the Kalamazoo Gazette, the U.S. Department of Agriculture Rural Development program states that federal law banning marijuana pre-empts state law, that landlords are responsible for monitoring illegal drug use, and that leases can be terminated if drug policy is violated.

Furthermore, according to the memo, a medical-marijuana user could be denied entry into a dwelling until the person “agrees not to commit drug violations in the future and has completed, or is in the process of completing drug-related counseling.”

Other USDA officials report that because of the directive by the U.S. attorney general to not prosecute MMJ users, landlords have some discretion on enforcing the federal rule if the resident is in compliance with state rules.

“Residents subject to eviction from federal housing is one of the forms of lingering discrimination regarding medical marijuana users,” Vicente said. “It is heartbreaking. It is a complicated landscape and patients should do the best they can to educate themselves on the law.”

Little reciprocity

A common question is whether one state’s medical marijuana card is valid in other states that have legalized the drug. Only a few states have such reciprocity agreements, Vicente said. Arizona, Michigan, Montana and Rhode Island all value other states’ cards but with some limitations. For instance, in Arizona an MMJ card-holder from Colorado could possess the drug but not purchase it. Colorado’s medical-marijuana laws have no reciprocity agreements with any other state allowing the drug.

Medical-marijuana users are only partially protected by the laws of the state where it is legal, and remain at risk of prosecution by federal law enforcement. Keeping a low profile and following the state’s rules on use of medical marijuana are critical, Vicente says, advising those facing an officer to be mindful of their rights and “do not consent to a search.”

As far as tickets for medical marijuana, Tvert of SAFER advises resistance, at least in the case of minor offenses.

“I would encourage anyone to challenge the ticket,” said Tvert. “If you possess a small amount, the federal government has been pretty clear that they do not handle small cases involving marijuana.”

Jeff Dorschner, a spokesman for the U.S. Attorney’s Office in Denver, agreed that the smallest cases are of less concern to law enforcement. Whether the Ogden memo’s advice to back off MMJ users and dispensaries is honored depends on the gravity of the offense involved, he said.

“It is the difference between speeding 5 mph over the speed limit and 30 mph over in a school zone,” he said. “But we had a guy with past felony drug convictions growing more than he was allowed within 1,000 feet of a school, claiming medicinal marijuana, and that is being prosecuted.”


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