Illinois Valley News, Cave Junction, Ore. Wednesday, July 12, 2017
Page A-5
Beavercreek property owners file racketeering
suit against neighbors growing marijuana
By
Maxine Bernstein
The Oregonian
Portland, Ore. Two Beavercreek property
owners are relying on a federal law usually
reserved to fight organized crime to sue their
neighbors, contending the people next door
are engaged in racketeering by producing and
selling marijuana.
Rachel McCart and Erin McCart, who
own about 11 acres of fenced pastures and
woodland off South Highland Crest Drive, say
the operation harms their quality of life and
diminishes the value of their land.
They filed the civil lawsuit in Portland
against their neighbors, the multiple marijuana
distribution businesses and stores that buy
the marijuana and even the bank that holds a
mortgage on the two adjacent plots where the
marijuana grows.
The McCarts argue that any business
producing or selling marijuana is a criminal
enterprise and those who participate in the
business should be subject to civil liability for
causing injury to others.
The McCarts aren’t the first to rely on the
racketeering statute to stake a claim against
neighbors involved in cultivating cannabis,
and a recent federal appeals court ruling in a
Colorado case may give their claims and the
novel legal maneuver a boost.
The 10th U.S. Circuit Court of Appeals
last month found that ranchers in Colorado
alleged sufficient damages to invoke the
Racketeering Influenced Corrupt Organizations
Act in their suit against neighbors for growing
marijuana.
The appeals panel reversed a U.S. District
Court decision that had dismissed the ranchers’
claims of noxious odors and lower property
values as speculative.
In sending the case back to the district
court, the appeals judges left the door open
for something that legal experts and plaintiffs’
attorneys say could pose a threat to the legal
marijuana industry.
“I do see this as becoming a growing
trend,” said Brian Barnes, a lawyer for the
nonprofit Safe Streets Alliance, which brought
the racketeering suit on behalf of the Colorado
ranchers. The Washington, D.C.-based group
works to reduce illegal drug dealing and crime.
“The 10th Circuit ruling gives a green
light to a property owner to seek damages
if they’re adversely affected by a bad smell
resulting from marijuana cultivation,” Barnes
said. “That decision is kind of a road map for
future property owners affected by marijuana
businesses.”
Amy Margolis, a Portland lawyer who
represents marijuana businesses, noted that
the appeals court didn’t rule on the substance
of the case, just that it could move forward in
court.
“I do think these cases pose an existential
threat, but I think they’ll fail on the merits of
the claims,” Margolis said.
Any claim of injury from noxious fumes,
for example, would have to be “meaningfully
substantiated,” she said. For example, “What
smells bad to some people may smell good
to other people,’’ she said. And farmland next
to marijuana grows has been seen to actually
increase in value, she said.
The multiple businesses named as
co-defendants in the Oregon case also will
question how they could be liable for the
McCarts’ claims, Margolis said. “There is no
clear nexus,” she said. “That is really taking
this one or two or 10 steps too far.’’
The McCarts contend their neighbors
converted a horse barn into a marijuana
processing center and that cars from
Washington, Idaho, California and Virginia
regularly travel there, disrupting the couple’s
tranquil setting with its sweeping views of the
Cascade foothills and Mount Adams.
The pot production and “powerful and
unmistakable skunk-like stench of marijuana”
have curtailed enjoyment of their vegetable
garden and flowerbeds, riding their four horses
on their pastures and tending to their “beloved
pets’ grave sites” on their land, the suit says.
When the odor is particularly strong,
it keeps the McCarts from being outside,
entertaining guests, eating meals on their deck
or keeping their windows open, the suit says.
They bemoan what they describe as noise
from their neighbors’ excavators operating
until 3 a.m., diesel generators that disturb their
peace, the loud barking of guard dogs that
spooks their horses, trash along the road and
a “jacked-up camouflage-painted” SUV that
passes by with an “exceptionally loud engine.”
The McCarts and others have had to lock
their doors, install surveillance cameras and
erect “No trespassing signs,” according to the
suit.
The McCarts don’t recognize Oregon
law, created after voters in 2014 legalized
recreational marijuana, insisting that the U.S
Constitution is the “supreme law of the land”
and voids any conflicting state law.
The suit names 42 defendants and seeks
three times the damage amount to the McCarts’
property and other financial awards. Rachel
McCart, a lawyer, signed the lawsuit. She
has her own legal firm called Equine Legal
Solutions and declined to comment on the suit.
Two of the defendants, Angie Kopshy
and her fiancée Jeff Simonson, said the
McCarts have their facts wrong. Kopshy and
Simonson are tenants on property beside the
McCarts’ land, and run medical marijuana-
growing operations.
“The McCarts are attempting to
undermine the decisions of the state of Oregon
and its citizens to legalize and regulate
medical marijuana,” Kopshy said in a prepared
statement. “The McCarts’ federal complaint is
premised on falsehoods and at odds with the
true facts. It is disappointing that the McCarts
are trying to use the legal process to intimidate
us and other lawful participants in Oregon’s
ground-breaking marijuana industries.”
Two other defendants, Clifford Beddow
and his wife, Carol Beddow, own a gated
property just up the road from the McCarts and
lease their property to Kopshy and Simonson,
according to civil court records. Clifford
Beddow said he couldn’t comment because of
the pending suit.
The appeals ruling in the Colorado
case said the plaintiffs must prove that their
business or property was injured, and that a
violation of the racketeering law is the cause of
the injury. The violation could include drug-
related activity punishable under federal law,
the judges said.
The appeals court found that cultivating
marijuana for sale “is by definition
racketeering activity” and that it’s plausible
that “the enterprise’s foul emissions interfere
with the use and enjoyment” of the ranchers’
property.
The decision, however, came with
a caution from the judges: “We are not
suggesting that every private citizen
purportedly aggrieved by another person, a
group, or an enterprise that is manufacturing,
distributing, selling, or using marijuana may
pursue a claim under RICO. Nor are we
implying that every person tangentially injured
in his business or property by such activities
has a viable RICO claim.”
The Beddows are trying to protect
their tenants’ marijuana business as a “non-
conforming use” on their property under state
land use law and have an appeal pending
before the Oregon Land Use Board of Appeals,
according to court records.
Kopshy and Simonson contend that
McCarts filed the racketeering suit in
retaliation for the Beddows and others trying to
assert their rights before the state land board.
“We are attempting to reach an amicable
settlement of the case filed against us and
others by the McCarts in federal court alleging
RICO liability. If we are unable to settle the
case, we intend to dispute the claims and
allegations stated in the McCarts’ complaint,”
Kopshy and Simonson said in their statement.
Rob Bovett, legal counsel for the
Association of Oregon Counties, said he’s
not surprised a federal racketeering lawsuit
against marijuana growers has been filed now
in Oregon. “We knew this was springing up in
Colorado,’’ he said.
He said he has repeatedly warned the
marijuana industry of potential claims.
“It’s a cautionary tale,’’ Bovett said. “I
think some people get into a green frenzy. But
they must think carefully where they locate a
marijuana business and make sure neighbors
aren’t going to be damaged economically as a
result.’’
Marijuana grow
stabbing
JACKSONVILLE, Ore. (AP) - A 28-
year-old Medford man is facing attempted
murder and other charges after authorities say
he stabbed a co-worker at a marijuana grow
operation.
The Jackson County Sheriff’s Office says
Matthew Gabbard stabbed a co-worker with a
knife multiple times in the chest and abdomen
Saturday afternoon. The two were cutting
irrigation lines at a grow site.
Detectives believe the stabbing was
unprovoked and that Gabbard had intended to
kill his co-worker.
Authorities say the victim, 31-year-old
Jakob Crouch, was taken to a local hospital
with stab wounds that did not appear to be life-
threatening.
Gabbard was arrested and lodged in the
Jackson County Jail after being treated for a
cut.
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