Vol. 26 No. 16- U.S. Attorney Warns Cities Against Permitting Industrial Marijuana Cultivation Facilities


To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


July 26, 2011

In a letter dated July, 1, 2011, to Mayor Ann Schwab of the City of Chico, Benjamin B. Wagner, U.S. Attorney for the Eastern District of California, expressed concern that the City “is considering an ordinance which would authorize permits for two medical marijuana cultivation facilities, each up to 10,000 square feet.”

These types of industrial size marijuana facilities were also “permitted” by the Oakland City Council in July, 2010, but the permits were suspended in December, 2010, following warnings from the federal government that such action would violate federal law.

Mr. Wagner noted that in prior memoranda from the Department of Justice (DOJ) the federal government said that it would “not focus its limited resources on prosecuting seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law . . . .”

However, Mr. Wagner stated that the Department of Justice (DOJ) “will enforce the CSA [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”  [It should be understood that, in the opinion of many, these large scale marijuana “grows” are not permitted under California law.]

The letter also points out that “the Department maintains the authority to pursue criminal or civil actions for any CSA violations whenever the Department determines that such legal action is warranted.”  These actions include, but are not limited to, prosecuting the illegal manufacturing or distributing of marijuana; the opening, leasing, renting or using property for the manufacturing, storing or distribution of marijuana; the use of civil injunctions; and the forfeiture of drug proceeds and/or property traceable to drug violations.

The letter concludes by noting that “the Department is concerned about the proposed ordinance in the City of Chico, as it would authorize conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Individuals who elect to operate industrial marijuana cultivation facilities will be doing so in violation of federal law.”

Mr. Wagner points out that those who “knowingly facilitate such industrial cultivation activities, including property owners, landlords, and financiers, should also know that their conduct violates federal law.”


It appears that the federal government is taking a more aggressive approach towards the enforcement of the CSA.  As noted above, the City of Oakland backed off from their approval of several industrial size marijuana cultivation facilities after receiving similar warnings from the DOJ.

Additionally, last year, there was significant concern expressed by the Attorney General of the United States, Eric Holder, when it appeared that California might authorize recreational use of marijuana through the passage of Proposition 19.  The Proposition failed to pass and, therefore, the concerns expressed were not realized.

There are differing opinions expressed as to whether or not local medical marijuana dispensaries are authorized or illegal under current California law.  Obviously, each jurisdiction must reach individual conclusions based on advice and guidance from its own legal counsel.  However, it appears to be clearly stated that the “permitting” of industrial marijuana cultivation facilities by cities or counties will cause the federal government to initiate criminal and/or civil actions to prevent the operation of such facilities.

Seeking advice and guidance from one’s attorney, when confronted with legal issues, is always important; when dealing with complex legal issues, such as these, obtaining advice and guidance from the city or county attorney is imperative.

If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship