Anti-Pot States Can't Touch Colorado's Marijuana Law, Court Says

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A federal appellate panel on Wednesday blocked the states of Nebraska and Oklahoma from challenging Colorado’s marijuana legalization law, saying their claims should be directed to the U.S. Supreme Court—a venue that has already refused to hear their fight.

Nebraska and Oklahoma sought to intervene in Safe Streets Alliance v. Hickenlooper, a case brought by Colorado residents, law enforcement officials and an anti-drug group, after the U.S. Supreme Court in March 2016 declined to take “original jurisdiction” over their suit. In the high court, the states had alleged Colorado’s Amendment 64—which legalized recreational marijuana—violated federal drug laws and brought an increase in crime inside their borders.

The U.S. Court of Appeals for the Tenth Circuit said the dispute Nebraska and Oklahoma brought is with Colorado—not with Gov. John Hickenlooper’s enforcement of Amendment 64, as they alleged. Because the Supreme Court has jurisdiction over disputes between states, the appeals court said, it could not hear the claims.

The two states could return to the high court with their grievances, court scholars and others said, and the Tenth Circuit panel made a point of noting that option.

“The states pointed to no statute, rule, or precedent preventing them from refiling their original complaint in the Supreme Court,” Circuit Judge Mary Beck Briscoe wrote for the panel. She added: “We also have found none.”

Still, it’s far from certain whether the U.S. Supreme Court will be amenable to hearing a renewed complaint. Only two justices—Clarence Thomas and Samuel Alito Jr.—last year wanted to take up the case that Nebraska and Oklahoma brought against Colorado. Justice Neil Gorsuch, who earlier sat on the Tenth Circuit, ruled for the IRS in a marijuana-related dispute in 2015.

A spokesman for Oklahoma Attorney General Mike Hunter said the states are disappointed with Wednesday’s ruling. “We are reviewing the court’s decision and will evaluate our options to determine the best course of action,” Hunter press aide Alex Gerszewski said.

The Colorado Attorney General’s office didn’t immediately return a message seeking comment.

Property owners got some vindication in the Tenth Circuit decision. The panel reinstated the claims of Colorado landowners who sued a neighboring marijuana grower for damages under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO.

The landowners said the value of their rural Pueblo County property was threatened  after Alternative Holistic Healing launched a commercial marijuana farm on adjacent land, sending a “noxious” smell wafting in their direction. The district court dismissed the claims, finding that the landowners failed to prove a financial loss tied to the marijuana operation.

But the appellate panel said the couple, Phillis and Michael Reilly, had demonstrated a number of “plausible” claims, including the loss of their land’s value by “neighboring criminal activity.”

“Marijuana is a controlled substance under the CSA,” Briscoe wrote. “So the manufacture, distribution, and sale of that substance is, by definition, racketeering activity under RICO.”

The panel cautioned that its findings relating to the Reillys’ claims are “narrow” and based on the facts. “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,” Briscoe wrote. “ Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim.”

Brian Barnes of Cooper & Kirk in Washington, who represented the Reillys and the anti-drug organization Safe Streets Alliance, called the Tenth Circuit’s ruling “a really powerful weapon” for any property owners next to state-legal marijuana operations.

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Source: 420Intel – Politics

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