WSLCB - Board Caucus
(November 30, 2021)

Here are some observations from the Tuesday November 30th Washington State Liquor and Cannabis Board (WSLCB) Board Caucus.

My top 3 takeaways:

• Board Chair David Postman had several questions around the purpose and future of agency-led advisory councils for communicating with alcohol, cannabis, and tribal government representatives. 
  • At publication time, the Alcohol Advisory Council (AAC) last met in December 2020 whereas the Cannabis Advisory Council (CAC) met twice in 2021, on January 6th and April 7th. The Tribal Advisory Council (TAC) had not reconvened since April 2019.
    • Board members adopted a revised tribal consultation policy deemphasizing the TAC in August 2020.
  • Postman mentioned the AAC meeting scheduled for Wednesday December 1st would feature discussion on “what [representatives] see for the future of the council,” pointing out there’d been “little discussion about” the other advisory bodies for the agency (audio - 1m, video).
  • Postman noted “other avenues of conversation” with tribal officials outside of the TAC had become normalized, and asked Board Member Russ Hauge, the board sponsor for the TAC, if “there’s value in trying again to reconstitute” the council (audio - 5m, video).
    • Hauge pointed to the previous work and outreach of Tribal Liaison Brett Cain, who left WSLCB in August 2020, as helping identify potential downsides of the TAC. Hauge said its name was a “misnomer” as neither the board nor sovereign tribal nations required “advisory” input from the other, leading to “awkwardness at the outset.”
    • Cain and Hauge had developed a policy with the entities to work “more in a collaborative sense,” and exercise equal powers “to call meetings and set agendas.” After outreach to several tribal officials, including the Puyallup Tribe of Indians whose leadership was “in a position of authority...in one of the larger tribal groups,” there had been “a lot of support for the general idea of recasting [the TAC] in that form.” Hauge said that although the agency had “lost a little momentum there” due to the Coronavirus pandemic, “the notion of a tribal advisory council is not really that useful...what we really need is outreach to the tribes” to convey the “willingness” of WSLCB leaders “to listen to their concerns and try to reach an accommodation.”
    • Hauge considered the “cannabis space” to be an area for “innovation, particularly with the tribes given that they are separate sovereigns.” The indigenous nations within Washington state could serve as test cases for policies “that we can’t try with non-tribal license holders,” he theorized. Hauge felt that was “a big opportunity that we have to pursue,” a “place where we’re going to learn things.”
      • A 2014 policy memo from the U.S. Department of Justice left cannabis policy in “Indian Country” at the discretion of each tribe’s government, and issued general guidance on the statement in January 2015. This resulted in some tribal nations leading on cannabis policies in their regions:
        • The Flandreau Santee Sioux Tribe in South Dakota operated Native Nations, the first medical cannabis dispensary in the region. The tribe passed an ordinance to allow on-site patient consumption venues in 2021.
        • The Las Vegas Paiute Tribe in Nevada operated NuWu Cannabis Marketplace, the only cannabis “tasting room” in the Las Vegas area, since 2019.
        • The Shinnecock Indian Nation in New York announced a partnership with TILT Holdings on August 24th to “finance, build and provide management services for the vertical cannabis operations of the Shinnecock Nation’s wholly owned cannabis business, Little Beach Harvest,” in Southampton, including a “wellness lounge.”
      • See Marijuana Legalization in Indian Country: Selected Resources compiled by the U.S. Centers for Disease Control and Prevention (CDC) in February 2017.
    • Hauge’s hope was “to continue the dialogue that we started before COVID hit.” While Director of Legislative Relations Chris Thompson had done “very good” liaising with tribal officials, “he’s got a lot on his plate.” Considering the burgeoning partnerships “exciting,” he wanted a “vehicle for us to share with the tribes.”
  • Postman asked how agency staff could “create those opportunities” since tribal officials could already request “a government-to-government consultation with us” but such meetings typically weren’t intended for “creative brainstorming.” Hauge responded that he’d been more engaged with tribal nations before the pandemic, and found the most “exciting possibilities” emerged from one-on-one conversations with representatives from individual tribes (audio - 3m, video).
    • Offering the example of the Squaxin Island Tribe, whose compact was approved in 2015, Hauge commented their government was “really committed to their efforts to grow, and to process, and to sell.” He saw their cannabis sector as “a small and closed system” where WSLCB representatives could “collaborate in maybe pushing the envelope a little bit,” provided the tribal nation was a “willing partner.” Hauge stated there was “ground to break” on the “social aspect” of cannabis like social consumption. Postman observed that direct sales by producers was another possibility.
      • Hauge and Cain visited the Tribe’s production facility in February 2020.
    • Postman mentioned having heard “a little from tribes with some ideas like that,” but WSLCB leaders needed to take an active role to “stimulate that conversation more” to partner on “best practices” and other mutual interests.
  • Postman moved the discussion to the CAC, chaired by Board Member Ollie Garrett, who said she wanted “to reshape” the council as some members were “no longer there.” She’d found that representing WSLCB on the Washington State Legislative Task Force on Social Equity in Cannabis (WA SECTF) had involved “a lot of meetings” and she’d not wanted to add to that schedule as some CAC members were involved in both entities. Garrett hoped to convene the group again in 2022 and “revamp the committee" to discuss WA SECTF recommendations impacting the agency and industry, though she doubted there’d be any meeting “until maybe late first quarter" (audio - 5m, video).
    • Remarking that he wanted to “hear from people that are actually doing the business,” Postman found advisory councils created a different atmosphere than when people “appear before the board at a board meeting.” Garrett argued that the councils were based on “organizations that represent the groups” of licensed or regulated businesses, but in the cannabis sector fewer such groups were “put together” ("only three solid organizations"). Postman concurred that some businesses weren’t involved in any trade groups, complicating any effort to introduce policy innovations. He also observed that the councils wouldn’t be “groups that make decisions" in place of the board.
    • Garrett proposed CAC meetings include a public comment period similar to board meetings. She also wanted to avoid “picking individuals to be on the committee” and continue to focus on organizations. Postman agreed it was "largely three [cannabis trade groups] that we hear from" and wondered about “stirring that up a little.”

• A conversation on the social equity task force recommendations delved into potential impacts at WSLCB from changes in license allotments and buffer distances.
  • Postman asked Garrett whether the board “should be concerned that they cancelled” meetings on December 14th as well as a planned Licensing Work Group meeting. She replied that as a member of that work group, “we hadn’t really voted on things” that were outstanding, yet the cancellation notice mentioned task force staff “were continuing to meet with” the co-leads of the group (audio - 4m, video).
    • At the last task force meeting on November 16th, she said a proposed scoring rubric left members “taken aback on what the recommendations were.” She’d scheduled a meeting with counsel for WSLCB from the Washington State Office of the Attorney General (WA OAG) to review the feasibility of approved recommendations as “there’s some things the LCB can do, but there are things that we can’t do and I don’t want it to seem like we’re given a recommendation and the LCB is saying ‘no’ and not accepting the recommendations.”
    • Garrett had concerns about agency leaders appearing to be oppositional to recommendations “that we are not able to do as an agency” without explicit legislative approval. She described staff as “ready and waiting” to start the equity licensing application window, “hoping to get recommendations and to actually be one of the first to put a program together” showing how “licenses were actually going out.” Garrett added that the intention was for a “program that we could show that we were actually issuing license[s] under the social equity program” without getting “tied up in court.” For this reason she was eager to hear what WA OAG attorneys would tell her, as she wanted to do whatever the agency could with the recommendations without waiting on legislative action. 
  • Hauge wanted to know if the task force had talked about the “capacity of larger, urban jurisdictions, like Seattle, to absorb more licenses if we wanted to create them.” Garrett believed Seattle officials were interested in just that, saying that the Association of Washington Cities (AWC) had surveyed municipalities to see if any were amenable to additional cannabis stores. “The issue is,” she said, “just because they want more” doesn't mean there were locations to site them nor an absence of other “permitting issues.” She observed that modifying buffer distances for social equity licensees was discussed, “but even in doing that...does it open up more?” (audio - 1m, video)
  • Postman was curious about the conversation around changes to buffer zones, “is that in a recommendation yet, or has that just been discussed?” Garrett responded that the task force had voted on some buffer changes on September 14th, however, “not the ones for the schools.” She noted some buffer distances had been modified by local governments already. Postman mentioned a May 25th licensing briefing that included a survey of local officials, revealing that there had been turnover in those governments “since these bans and zoning things were put in place” and that some places had “openness to doing more” (audio - 5m, video).
    • Garrett said AWC outreach was continuing and that WSLCB licensing staff had been “part of the conversations and on the calls.” She lauded the contributions of Becky Smith, Director of Licensing, to the task force’s understanding of the agency licensing process and said other staff had made themselves available during WA SECTF and work group meetings to answer questions or respond to participant comments.
    • “I’ve appreciated what I’ve heard” about the progress of task force meetings, Postman said, but he wanted the public to be mindful that “delivering the recommendations isn’t going to be the end of that process.” He expected agency officials would be “in a safe place to, to do those things” after legislative or judicial review.

• Board Member Russ Hauge expressed his approval of a recently published “Cannabis Law Deskbook” edited by Assistant Attorney General (AAG) Bruce Turcott and Austin Bernstein, an AAG at the Colorado Department of Law (audio - 3m, video). 
  • Turcott was one of the WA OAG counsels assigned to WSLCB, and Bernstein was also the director of the cannabis project for the Attorney General Alliance (AGA), which published the book.
  • Hauge, a former county prosecutor, was excited to have Turcott “sign my copy,” adding that Policy and Rules Manager Kathy Hoffman was also “responsible for several chapters.” He expected the deskbook would have a “huge” impact on the legal community (“this is gonna be on everybody's desk; it should be”). He complimented those involved for being able to edit the book “while we’re creating this market.”
  • Postman was similarly amazed Hoffman had found time to contribute “in addition to her job” at WSLCB. Hauge remarked that the editors had provided “the daily practitioner" of law without cannabis expertise, a way to "slow down that moving target" to “know what you’re talking about.”
  • Other publications on cannabis law include:
    • Marijuana law, 2nd Edition (1996)
    • Legal Guide to the Business of Marijuana (2018)
      • 2021 Edition
    • Cannabis Law: A Primer on Federal and State Law Regarding Marijuana, Hemp, and CBD (2021)