Federally-Funded Conservation Easement Thwarts Marijuana Production

As reported in the Whidbey News-Times, one of two applicants for a recreational marijuana-based businesses on Whidbey Island, Washington, recently withdrew its application. The applicant, Salish Sea Industries (SSI), had proposed to build a 3,833-square-foot barn for the production and processing of marijuana but withdrew its land use permit because of conflicts with federal law.

A portion of the property at issue is encumbered by a conservation easement that was funded in part by the federal government. The executive director of the Whidbey Camano Land Trust, which holds the easement, notified SSI that the terms of the easement would not allow them to do something that is in violation of federal law. A spokesman for SSI explained that the entity withdrew its application because it did not wish to enter into a protracted legal battle with the federal government. While not all of SSI’s property is encumbered by the easement, the marijuana production cannot take place on the unencumbered portion because the adjacent property is zoned rural residential and, per the Island County Code, marijuana-based businesses cannot operate in rural-residential areas.

Washington voters approved Initiative 502 in November 2012, legalizing recreational marijuana consumption and possession of up to one ounce. Under federal law, however, marijuana is still treated like every other controlled substance, such as cocaine and heroin. 

Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law