Pubdate: Thu, 30 Jul 2015
Source: Alaska Dispatch News (AK)
Column: Highly Informed
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

WHAT IF MY RURAL ALASKA TOWN OPTS OUT OF POT SALES?

This week, a reader asks a question getting to the heart of an issue 
that will eventually need resolution as Alaska's attempt to structure 
its legal cannabis industry goes forward.

Other states that have legalized pot have roads leading more or less 
from every pot store to every potential customer. But a great many 
Alaskans live off the road system. They rely on small planes for 
travel and on air cargo parcels for practically everything, from 
construction supplies to bulk grocery items, and even alcohol.

Courtney asks, "Is it reasonable to expect that if my community in 
the rural part of the state 'opts out' of commercial cannabis, I will 
be able to order it like I can alcohol? I live off the road system in 
Bethel and we have a no-limit local option on alcohol."

The short answer right now is no. Unless federal law changes 
regarding the air transportation of cannabis within the borders of 
Alaska, people living off the road system will probably have a hard 
time finding someone else to fly pot to them from another community.

Opting out?

For folks who aren't aware, Alaska provides for localities to control 
how alcohol can be possessed, imported or sold, or to entirely ban 
it, even in the home. It's referred to as "local option," and it 
provides for a local majority vote to set alcohol's status in a 
community to one of several options.

Courtney's town, Bethel, allows unlimited personal importation of 
alcohol, but not local sales. Bethel public radio station KYUK 
reports that the city council is taking steps that could change that. 
A ballot item may ask voters whether the city should sell alcohol, 
which is one of the local options. So, currently people there could 
order a bunch of alcohol, even get together with friends and chip in 
on a pallet load, and have it shipped to them in Bethel. But as we'll 
see, that wouldn't be the same for cannabis even after the local 
option system for cannabis takes final form.

An update on that, by the way: The Alcoholic Beverage Control Board 
is currently taking written comments on a raft of regulations that 
include a set for local options on cannabis businesses and sales, 
resembling the ones on the books for alcohol. Directions for 
commenting are available in the sets of proposed regulations at the 
state ABC/MCB website.

The ways to opt out will resemble each other, but they won't quite be 
apples to apples. Court decisions have consistently interpreted 
Alaskans' constitutional right to privacy as including limited 
personal in-home cultivation and possession of marijuana. So if a 
community opts out of allowing cannabis businesses, it won't be able 
to keep individuals from possessing it in their own homes or 
importing it for personal use in an amount smaller than an ounce, the 
maximum amount now allowed for an adult to possess outside the home.

Cynthia Franklin, director of the ABC Board, said in a phone 
interview that regulations are being rolled out in batches, with 
calls for written comments now. She expects the public will 
eventually have the opportunity to comment on the proposed 
regulations in person or verbally after they're combined into one 
package, but that in the interest of time, written comments on 
specific sets of proposals are what the board is looking for during this stage.

Franklin said that if the schedule progresses, the board could vote 
to put that full package up for public comment by the middle of 
September. Following that, at the end of a 30-day comment period, the 
public can expect a day-long board meeting in Anchorage where there 
will be opportunity to register in-person and call-in comments on the 
full slate of proposed regulations.

Federal code

So, let's say that after all the regulatory dust settles, Courtney's 
town decides not to allow pot sales. Could she buy pot from a legal 
store in, say, Anchorage, and have it shipped to her in Bethel by a 
commercial air carrier or some other kind of pilot?

Unless federal law changes, cannabis enthusiasts in that situation 
will either have to keep being dopeless hope addicts, carry or fly 
their own legal amount of pot home, or, far more likely in my 
opinion, they'll end up contributing to the black or gray market.

Acting chair of the Marijuana Control Board Bruce Schulte boiled down 
the issue: "It doesn't matter whether it's allowed for in statute or 
regulation or not if there isn't any pilot who's going to carry it."

Schulte, a commercial pilot himself, said he looked into this 
question after the initiative passed, and he said the things the FAA 
told him led him to conclude that he just didn't want to touch it. 
"If someone asked me to fly, say, a pound somewhere, I wouldn't. I'd 
say thanks but no."

Title 49 of the U.S. Code contains a set of statutes (Sec. 44710) 
that require revocation of a pilot's certificate in a set of 
circumstances involving the transportation of controlled substances, 
which cannabis is still considered by both Alaska and the U.S. The 
statutes start by calling for the FAA administrator to revoke an 
airman certificate if "the individual knowingly carried out an 
activity punishable, under a law of the United States or a State 
related to a controlled substance (except a law related to simple 
possession of a controlled substance), by death or imprisonment for 
more than one year."

The federal sentencing guidelines for a first-offense marijuana 
trafficking charge (not simple possession) call for "not more than 5 
years" in prison for trafficking less than 50 kilos of pot, 10 kilos 
of hashish, 1 kilo of hash oil, or from 1 to 49 cannabis plants, 
regardless of their weight.

Consequences for a pilot found to be in violation of that set of 
statutes can be profound, said Howard Martin, regional counsel for 
the FAA, in a phone interview.

"Normally, if you get your certificate revoked, you can reapply, but 
if you get it revoked for drugs you're done for life." And it's not 
just a risk for the pilot, Martin said. The administrator would look 
to revoke the certificate of anybody involved in the transportation 
of cannabis for someone else, not just the person flying.

FAA rules do provide an exemption for pilots to transport 
personal-use amounts of pot, said Martin. He explained that when that 
FAA rule was written, no one considered that state and federal law 
could be at odds over cannabis, so a single "or" at the end of 
paragraph "b" in CFR 91.19 ends up providing an exemption to pilots 
carrying their own personal-use grass inside Alaska.

Martin stressed that even though an exemption exists for that 
behavior, it's still very risky to do. In cases of accident or other 
situations with potential liability, he said, the presence of drugs 
or alcohol in the plane could make everything worse.

"I tell people I'd never even carry a bottle of whiskey with the seal 
broken on it," he said.

Possible market effects

All the real risks aside, it's not like the FBI is stationed at 
Merrill Field searching airplanes to bust people carrying slightly 
more than the ounce allowed individual adults in Alaska. And it's not 
like small air carriers flying to rural Alaska are in the practice of 
searching people or their parcels before they board. But it's 
significant that the weight Schulte used in his hypothetical example 
was a pound. That's a large amount of pot, and one that would likely 
indicate illegal trafficking to authorities, who are experts at 
looking at the totality of circumstances.

So, Courtney could conceivably ask a pilot to carry no more than an 
ounce for her, and that person could plausibly claim it's for 
personal use if there's any interest from authorities or attempt to 
revoke a certificate. But that still would involve deception and a 
hinky work-around. And the risk of permanent certificate revocation 
would still be there, putting a career or more at stake.

Plus, from a purely logistical standpoint, that delivery method 
wouldn't be very efficient way to conduct a legal and regulated 
business. It's just not workable to serve market interest in rural 
Alaska towns by delivering an ounce at a time, one plane at a time, 
flown by a pilot willing to make a false claim of personal use. The 
mark-up on transportation would have to be ridiculous in that case, 
potentially setting up a price differential that would fracture the 
legal market between the road system and rural Alaska, and probably 
encourage bootleggers.

Federal law in this case poses a marijuana regulation puzzle unique 
to Alaska. And given the prevalence of pot in rural areas already, it 
seems a safe bet that small, personal-use-sized parcels of pot are 
now being transported by air around Alaska unbeknownst to pilots and 
without federal interest or consequences. And unless something 
changes in federal law, it seems reasonable to think such parcels 
will still use those same shady avenues after legal sales begin and 
towns begin opting out.

But that doesn't mean there's no risk to anyone in the transportation 
equation. There certainly is risk. And it would take a change in 
federal code for Alaskans to ship legally purchased cannabis within 
the state without risking the livelihoods of pilots they depend on 
for so many other things.
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MAP posted-by: Jay Bergstrom