dissenting.
I disagree with the majority’s ruling that the state’s appeal is moot because the order to release some of the seized marijuana to the cardholders has been executed and the state concedes that it could not retrieve any of that marijuana from the cardholders, even if it is successful on appeal. The majority’s reasoning effectively denies the state a statutory right to appeal because it obeyed the trial court’s order. I would also reverse the trial court’s order releasing the marijuana to the cardholders in this case for the reasons more fully explained below.
“[A] case becomes moot when, because of a change of circumstances before review, a judicial decision would resolve a merely abstract question rather than an actual and substantial controversy.” State v. Lavitsky, 158 Or App 660, 663, 976 P2d 82 (1999). This appeal involves an actual and substantial controversy in a pending criminal prosecution against defendant that has yet to be tried. The order on appeal releases part of the evidence that the state was entitled to offer into evidence in an effort to prove that defendant was in possession of more marijuana than that permitted under the Oregon Medical Marijuana Act (OMMA) as charged in the indictment against defendant. I submit that a pretrial order of the kind in this case does not become moot for purposes of appeal merely because the sheriff did what he was ordered to do. Otherwise, law enforcement agencies would be required to disobey trial court orders in these kinds of cases in order to preserve their right to appeal.
*526The right of the state to appeal the trial court’s order is a statutory right, as are the rights of cardholders to possess medical marijuana under the OMMA. But under the majority’s reasoning, the state’s right to appeal is frustrated and rendered meaningless. It is inconceivable that the legislature, having provided for the right of the state to appeal pretrial orders, could also have intended that an appeal could be mooted by a court-ordered return of seized medical marijuana before the appeal could be adjudicated. At a minimum, there is an actual and live controversy regarding how the legislature intended the statutory rights of the state and cardholders to be harmonized.
Moreover, an actual and substantial controversy continues to exist in this case because of the continuing viability of the court’s order. An issue on appeal becomes abstract when, because of circumstances, it no longer has any relationship to any remaining issue in the case. In this case, the quantity of marijuana that defendant possessed has ongoing significance in light of defendant’s status as a medical marijuana grower and caregiver and the state’s claim that he was in possession of amounts of marijuana that exceeded his legal authorization. The majority disagrees. In its view, as a justification for declaring the issue moot, it posits that the amount of marijuana held by the sheriff “is sufficient to prove that defendant possessed, manufactured, or delivered 150 or more grams of marijuana as alleged in the indictment.” 232 Or App at 519. Respectfully, the majority has no factual basis on which to make its assertion. Indeed, the majority concedes that “[t]he record is not clear regarding how many pounds of marijuana were seized from defendant * * 232 Or App at 519. Moreover, the implication of the majority’s surmise is that the judicial branch of government can dictate to the executive branch of government the amount of evidence that is sufficient for the state to successfully prosecute a defendant when a trial has yet to occur. Again, respectfully, that kind of overreaching, even if not a violation of the separation of powers doctrine, interferes with the province of the state to carry out its exclusive, constitutionally mandated authority to prosecute criminal conduct. It is up to the prosecution, not the courts, to decide how much evidence is needed to prosecute a defendant.
*527Moreover, the emphasis on the amount of evidence retained by the prosecution as a rationale for declaring the state’s appeal moot tends to beg the question of whether there remains a substantial and live controversy. I am aware of no precedent from either appellate court in this state that has determined mootness based on the loss of evidence due to obedience to a court order. The fact that the physical evidence cannot be retrieved from the cardholders does not render the question abstract or hypothetical because the proper focus for determining mootness is on the lawfulness of the trial court’s order, an order that remains in effect in a pending case in the trial court. Presumably, the trial court will not reverse its own ruling and will continue to follow it throughout the pendency of the case. As the state pointed out in oral argument, nothing in the trial court’s ruling prevents defendant from relying on the earlier order and successfully requesting that additional disbursements of the seized marijuana be made to the cardholders. As importantly, the trial court’s ruling establishes a precedent — not only for this case but for other similar cases within the judicial district within which the trial court sits. Under the court’s ruling, each and every time a seizure of medical marijuana is made by law enforcement officers within the court’s judicial district, the ruling establishes the precedent that at least some of the marijuana, upon request by a defendant, must be released to cardholders before trial occurs. In that light, the state’s concern that the trial court’s ruling infringes on the ability of the state to prosecute is a valid concern and creates a live controversy between the parties and any similarly situated parties. For all of the above reasons, I disagree with the majority that this appeal is moot.
As to the merits of the state’s appeal, I would reason as follows. In this criminal action charging defendant with the unlawful manufacture of marijuana, ORS 475.856, the unlawful delivery of marijuana, ORS 475.860, and unlawful possession of marijuana, ORS 475.864, in 2006, the state appeals a pretrial order entered by the trial court that directed the sheriff to “return Eight (8) ounces of usable packaged marijuana seized from [defendant] to each of the three patients for whom [defendant] was growing marijuana under *528the Oregon Medical Marijuana Act.”1 On appeal, the state argues that the trial court lacked the statutory authority to enter the orders.
Defendant is a designated caregiver and grower for multiple persons who are cardholders under the OMMA. A substantial amount of marijuana was seized from defendant’s property after Douglas County deputies executed a search warrant.2 That evidence led to the above charges against defendant. Before trial, defendant moved to have some or all of the seized marijuana released to the duly licensed cardholders for whom defendant is the designated grower and caregiver. The motion recites that defendant was the lawful caregiver for a number of registered cardholders, that the owners of the marijuana were the patients for whom defendant grew marijuana, and that there were approximately three-and-one-half pounds of dried usable marijuana seized from defendant’s residence. The motion concludes, “This Motion seeks to have the dried usable marijuana returned to the patients.” At the hearing on the motion, three registered cardholders that had designated defendant as their grower and caregiver testified to their need for the marijuana.3 Although the state and the Douglas County Sheriff opposed the motion, the trial court granted it to the extent recited above.
On appeal, the state argues that, under ORS 475.323(5), seized marijuana can be returned to cardholders only if the cardholder is the person from whom the marijuana *529was seized. Alternatively, the state contends that the cardholders did not request the return of the marijuana, nor did the Douglas County District Attorney make a determination that the cardholders were entitled to the return of the marijuana seized as required by ORS 475.323(2). Accordingly, in the state’s view, the court had no authority under the OMMA to order its return to them.
Defendant responds that ORS 475.304(5) confers a property interest in the marijuana to the cardholders, and, accordingly, the marijuana was seized from the cardholders, as well as from defendant. Because the marijuana was seized from the cardholders and the district attorney has made no effort on the record before us to prosecute the cardholders, defendant concludes that the marijuana must be returned to the cardholders pursuant to ORS 475.323(2).4
Defendant’s motion for the return of the marijuana is based on ORS 475.304(5), which provides,
“All usable marijuana, plants, seedlings and seeds associated with the production of marijuana for a registry identification cardholder by a person responsible for a marijuana grow site are the property of the registry identification cardholder and must be provided to the registry identification cardholder upon request.”
Additionally, ORS 475.323(2) provides,
“Any property interest possessed, owned or used in connection with the medical use of marijuana or acts incidental to the medical use of marijuana that has been seized by state or local law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession of any law enforcement agency. A law enforcement agency has no responsibility to maintain live marijuana plants lawfully seized. No such property interest may be forfeited under any provision of law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense. Usable marijuana and paraphernalia used to administer marijuana that was seized by any law *530enforcement office shall be returned immediately upon a determination by the district attorney in whose county the property was seized, or the district attorney’s designee, that the person from whom the marijuana or paraphernalia used to administer marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. The determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal.”
As framed, the parties’ arguments present a question of statutory interpretation, and our initial task is to discern the legislature’s intent in that regard. Under State v. Gaines, 346 Or 160, 171-72, 175, 206 P3d 1042 (2009), the legislature’s intent is ascertained by an examination of the text and context of ORS 475.323(2) and ORS 475.304(5) and the legislative history underlying the OMMA, if offered or helpful.5
ORS 475.304(5) and ORS 475.323(2) operate in concert with the other statutes in the OMMA, including ORS 475.309(1)(b), which provides,
“The person who has a debilitating medical condition, the person’s primary caregiver and the person responsible for a marijuana grow site that is producing marijuana for the cardholder and is registered under ORS 475.304 are collectively in possession of, delivering or producing marijuana for medical use in amounts allowed under ORS 475.320.”
ORS 475.304(5) provides that the usable marijuana, plants, seedlings, and seeds at a registered grow site are the property of the cardholder. ORS 475.309(1)(b) confers possessory interests or constructive possession rights to marijuana at a grow site to cardholders and primary caregivers, even when those persons are not in actual possession of the medical marijuana. ORS 475.323(2) refers to the seizure of “[a]ny property interest possessed, owned or used in connection with the medical use of marijuana” from the persons who are entitled to the protections contained in ORS 475.300 to 475.346.
*531In light of the above statutes, I turn back to the state’s argument that ORS 475.323(2) authorizes only the return of marijuana to defendant because he was the only person from whom it was seized. The breadth of the language in ORS 475.323(2) regarding “any property interest” in connection with the medical use of marijuana is determinative of the legislature’s intent regarding the issue framed by the state’s argument. Under ORS 475.304(5) and ORS 475.309(l)(b), the ownership and possessory interests held by cardholders in medical marijuana at a registered grow site are also protected under the OMMA. Those interests were invaded by the officers when they seized the marijuana from the grow site.6 Because ORS 475.304(5) and ORS 475.309(l)(b) confer possessory and ownership interests in the marijuana to cardholders, those statutes, when read together with ORS 475.323(2), evidence the legislature’s intent that a cardholder is among the “persons” to whom seized medical marijuana could be returned under the authority granted by the statute. In other words, I would hold, contrary to the state’s argument, that even though the marijuana was not seized from the physical possession of the cardholders, ORS 475.323(2) authorizes the release of medical marijuana to cardholders if the other conditions of the statute are satisfied.
The remaining issue under ORS 475.323(2) is whether the district attorney or his designee has made a determination that the person from whom the marijuana was seized is entitled to the protections contained in ORS 475.300 to 475.346. According to the statute, “[t]he determination may be evidenced, for example, by a decision not to prosecute, the dismissal of charges or acquittal.” In the trial court, the district attorney opposed defendant’s motion on the ground that it needed the seized marijuana as evidence to prosecute defendant. My review of the record fails to disclose any finding by the trial court that the district attorney made *532the determination required by ORS 475.323(2). Because that finding is a statutory predicate to the return of the marijuana under ORS 475.323(2), and the trial court failed to make such a finding, I would reverse the court’s order.7
Accordingly, I dissent.
Previously, this court had determined by order of the Chief Judge that it has jurisdiction over the state’s appeal under ORS 19.205(5).
No party presented evidence of the particular amount of usable marijuana seized by the sheriff. Defense counsel represented to the trial court that there was “about a pound and half to two pounds.” Later, counsel conceded that “upwards of thirty plants were seized, and “lots of hags of leaves.” On the other hand, the prosecutor told the court that
“[tjhere is actually a huge amount of usable marijuana in this case. I know what counsel is talking about. Counsel is talking about the marijuana bud. * * * I do not recall exactly how many pounds but, under the statute of usable marijuana, leaves are included in that. * * * But so I think in terms of statutory definitions, there is a much larger amount of usable marijuana than just one, two, or three pounds.”
The cardholders testified both to their debilitating medical conditions that led to them being cardholders and their difficulty in legally obtaining medical marijuana from other sources.
Defendant also argues that some of the issues raised by the state on appeal were not preserved in the trial court as required by ORAP 5.45. Our review of the record persuades me that the trial court and defendant had an adequate opportunity to address all of the issues raised by the state on appeal.
ORS 475.304(5) was enacted in 2005 as part of Oregon Laws 2005, chapter 822, and neither party has cited any legislative history that has been helpful to our analysis.
Generally, a “seizure” under ORS 475.323(2) occurs when there is a significant interference with a person’s possessory or ownership interest in property. State v. Juarez-Godinez, 326 Or 1, 6, 942 P2d 772 (1997) (defining a “seizure” for purposes of Article I, section 9, of the Oregon Constitution). Because the word “seizure” has a defined legal meaning, presumably, the legislature was referring to that definition when it used the word “seized” in ORS 475.323(2).
The authority under ORS 475.323(2) to return medical marijuana that has been seized has a statutory corollary in ORS 133.643(4), which provides that things subject to seizure may be returned to a movant “upon the court’s determination that they are no longer needed for evidentiary purposes.” Both ORS 475.323(2) and ORS 133.643(4) are intended to vest district attorneys with the authority to preserve seized evidence for purposes of trial and until the evidence is no longer needed.