HELENA -- A Missoula legislator suggested Monday that the federal government "delist" the regulation of medical marijuana and leave it up to state control, just as was done with the Northern Rocky Mountain gray wolves this year.
Rep. Diane Sands proposed the idea in an email sent to some of her Democratic colleagues, and she will send similar notes to Republican legislators and Gov. Brian Schweitzer. She was a leading Democratic legislator on the medical marijuana issue in the 2011 session after chairing an interim committee that studied the issue extensively last year.
"I think this is a unique movement in time to once and for all get this addressed at the federal level," Sands said in an interview Monday.
At present, she said, there's little a state Legislature can do to regulate medical marijuana, given the federal government role. In addition, the federal government's stand on medical marijuana can vary with different presidents and their appointed attorneys general.
"That just creates such uncertainty to people who are medical marijuana patients or providing medical marijuana to them," Sands said. "There's no stability."
Her comments followed U.S. Attorney General Eric Holder's comments in Rhode Island last week that he intended to clarify the Justice Department's stance on state medical marijuana laws. Holder's comments came after federal prosecutors in a number of states, including Montana, have warned they might prosecute licensed growers, despite state laws.
Montana's U.S. attorney, Michael Cotter, issued a warning letter in response to a request for his position from the presiding officers of the Montana House and Senate in April.
In her email, Sands wrote:
"I think we all agree that states have an extremely limited ability to act and regulate medical marijuana, given the U.S. attorney's most recent letter about the implications of marijuana's controlled substances status."
She noted that Holder intends to issue further clarification soon.
"It seems clear no initiative, state legislation or state court action can expand regulatory authority if the federal government chooses to exercise the Controlled Substances Act restrictions," Sands said.
"It appears to me that there is a window of opportunity to change the federal status if states act together to request a 'delist-and-provide-for-state-regulation' model similar to wolf management."
Earlier this year, Congress passed a bipartisan rider to the 2011 federal budget bill. That rider ordered the U.S. Fish and Wildlife Service to reinstate the 2009 wolf delisting decision and barred further court challenges.
Sands, noting the number of states, mostly in the West, that have legalized medical marijuana, suggested that perhaps some state governors, led by Gov. Brian Schweitzer and Washington Gov. Chris Gregoire, could be approached to push the effort to delist medical marijuana.
Schweitzer is in China for two weeks.
In addition, Sands said legislators in states that have legalized medical marijuana might be able to advocate for such an effort at meetings of their national groups, the National Conference of State Legislatures and the Council on State Government.
"Even if it were not to happen, it would be at the least a bold request," Sands said. "The least we should do is make the request."
Senate Majority Leader Jeff Essmann, R-Billings sponsored the bill that ultimately became law this session without Schweitzer's signature to tighten restrictions on the industry.
He said Sands is proposing an exemption from the Controlled Substances Act, the federal law that regulates marijuana and other illegal drugs.
Essmann said he would prefer to take a different approach. He favors letting the U.S. Food and Drug Administration study a prescription drug, Savitex, produced from a marijuana derivative, that has been approved for use in Europe.
"I think during the session and prior to the session and since the session, I've heard from a lot of people if it's medicine, why isn't it handled through the pharmacy and regulated by that," he said of marijuana. "I had one physician tell me he thought the cart was ahead of the horse. The science should develop and then we should take the appropriate legal action."