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.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
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.
Have a question about marijuana news or culture in Alaska? Send it to cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.