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Originally published November 7, 2012 at 9:14 PM | Page modified November 8, 2012 at 3:52 PM

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Pot legal Dec. 6, 'jury is out on what happens' after that

Possession of small amounts of marijuana becomes legal on Dec. 6 in Washington thanks to Initiative 502. But will the feds stop the state from licensing stores to sell it?

Seattle Times staff reporter

I-502 results

As of 10 p.m. Wednesday

Yes: 55.35%- 1,177,706

No: 44.65%- 950,081

Legalizing pot

Key provisions of Initiative 502:

Possession: Strips state criminal penalties, starting Dec. 6, for small possession (1 ounce dried form, 72 ounces liquid, 1 pound solid form) for people 21 and older. Public use becomes an infraction. Until Dec. 6, marijuana possession remains a crime.

Sales: By December 2013, state to issue licenses for cannabis retailers, growers and food processors; imposes 25 percent excise tax at each level, funding research, prevention and health care.

Medical marijuana: Does not change state medical-marijuana law; no home grows except for patients.

DUI: Adds new limit for marijuana impairment.

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Washington's grand social experiment with marijuana legalization begins Dec. 6 with a simple step: On that date, it is legal to have an ounce of the stuff, and there is little the federal government can do about it.

But how the state takes the next big step — transforming the marijuana black market into a closed, regulated and taxed marketplace — is unclear. And the federal government didn't help clarify its potential response on Wednesday.

The U.S. Department of Justice and U.S. Attorney Jenny Durkan, of Seattle, declined to answer questions about the conflict between the federal ban on marijuana and the new state law legalizing it for recreational use. A DOJ statement reminded voters that the federal ban "remains unchanged," and said the agency was reviewing the legalization measures, here and in Colorado.

Even as legalization proponents celebrated the historic confrontation with the federal drug policy, the state began the yearlong job of setting up a marijuana market. Which means within a month, you can possess marijuana and use it in private, but there's no place to legally buy it.

Gov. Chris Gregoire, speaking on KUOW radio on Wednesday morning, said she hoped to work closely with the next governor on Initiative 502 before she leaves office in January.

"The jury is out on what happens," said Gregoire, referring to the federal response. "Meanwhile, my job as governor is to do what the people of the state of Washington have said they want done."

Bob Ferguson, the incoming state attorney general, said he could not predict the federal response. "I'm 100 percent looking forward to defending the will of the people and will defend it vigorously."

The federal government has several options to respond to I-502, including suing to block creation of a legalized marijuana market, said Hugh Spitzer, a University of Washington constitutional-law professor.

"I'm not saying they will. I'm saying they could," said Spitzer.

But what they cannot do is force Washington to reverse course and ban small amounts of marijuana possession, he said. "Under the U.S. Constitution, the federal government can't force a state to make something illegal."

The DOJ could also simply continue to enforce federal drug law, including arresting people who get state marijuana-growing and retailer licenses.

That's what Attorney General Eric Holder threatened to do before a 2010 marijuana-legalization vote in California, and is what former Drug Enforcement Administration chiefs asked Holder to do before Tuesday's vote. Instead, the DOJ was silent.

Peter Bensinger, DEA chief from 1976 to 1981, believes the feds will act. "I can't see the Justice Department doing anything other than enforce the law. There's no other out," he told The Associated Press.

Seattle City Attorney Pete Holmes, a vocal supporter of I-502, said a federal lawsuit would be premature, since no state-licensed marijuana store will open until at least December 2013.

"There's no reason to think there won't be an adult conversation with the feds," said Holmes. "I don't think for a minute they're going to blindly ignore the voice of the voters. They need to recognize that prohibition is not working."

That is also the hope of Colorado's Amendment 64 campaign, said spokeswoman Betty Aldworth. "At this point, we are cautiously optimistic that the federal government will respect the will of voters in Colorado and Washington and allow us to regulate marijuana as we best see fit."

Meanwhile, the Washington state Liquor Control Board (LCB) has begun planning for how to build marijuana regulations "from the ground up," it said in a statement Wednesday.

Board member Chris Marr said the agency will get input from experts, including the medical-marijuana industry, law enforcement and drug-treatment providers, and will likely hold public meetings around the state.

"It needs to be a very public dialogue about this, because it's pretty groundbreaking."

Although the federal response was unclear, Marr said the revenue potentially generated by I-502's steep marijuana sin taxes — estimated at potentially $1.9 billion over the first five years — will focus attention on getting the market up and running, he said.

"By anyone's estimate, that's a lot of new, un-earmarked revenue for the state," he said.

Despite the uncertainties, enthusiasm for legalized marijuana seemed boundless, at least in Seattle. Several medical-marijuana dispensaries, including Have A Heart CC in North Seattle, reported people filling storefront shops Wednesday even though they weren't authorized patients.

Ryan Kunkel, co-founder of Have A Heart, said the customers seemed to assume marijuana was legal now, so it should be available to buy. "There seems to be some miscommunication out there," he said.

Staff reporter Bob Young contributed to this report. Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com. On Twitter @jmartin206.

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