Marijuana, Supreme Court

Top Fed Attorney Says Colorado Pot Lawsuit Should Be Cashed

It’s great for the cannabis industry to see the federal government’s number one attorney telling SCOTUS it lacks jurisdiction to hear this case.

By  
on

After seven months, the federal government has finally weighed in on the U.S. Supreme Court’s request that it opine on the Nebraska and Oklahoma v. Colorado marijuana lawsuit. And I’m happy to write that the Solicitor General (i.e., the Fed’s premier attorney) is telling SCOTUS to throw in the towel and not hear the case at all. This is a major political and legal boon for Colorado and for the marijuana industry as a whole.

As you may recall, in December of last year, Nebraska and Oklahoma filed suit against Colorado in the United States Supreme Court, seeking to invalidate Colorado’s cannabis legalization laws.

Nebraska and Oklahoma want the Supreme Court to invalidate Colorado laws implementing its 2012 voter initiative. These two states claim Colorado has created a “cross-border nuisance” by increasing the supply of marijuana flowing through the region, something exacerbated by the Obama administration’s policy of not interfering with state legalization experiments. Nebraska and Oklahoma assert that Colorado’s legalization measure is pre-empted by federal law and should be struck down.

Both Washington and Oregon filed amicus briefs supporting Colorado’s right to legalize cannabis for adult use. Most recently, SCOTUS asked the Office of the Solicitor General to explain the federal government’s “position” on the litigation, potentially testing the strength of the most recent Cole Memo.

In his amicus curiae brief on behalf of the Solicitor General’s Office, Solicitor General Donald Verrilli, Jr. sides with Colorado. Verrilli argues that the lawsuit does not fall under the Supreme Court’s original jurisdiction and, therefore, SCOTUS has no power to take the case:

[Nebraska’s and Oklahoma’s] motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction . . . Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

The brief goes on to say that the injuries allegedly suffered by Nebraska and Oklahoma are not “direct [injuries] to their sovereign interests warranting an exercise of original jurisdiction. At most, they have alleged that third-party lawbreakers are inflicting those injuries, and that Colorado’s legal regime makes it easier for them to do so.”

Sponsored

The Solicitor General argues that this case differs from previous cases where SCOTUS ruled on disputes between states grappling with each other over cross-border pollution, environmental damage inflicted by one state on another, or boundary disputes. Since Colorado has only permitted (not specifically approved of or directed) its marijuana commercial activity to impact, affect, or injure the Plaintiff states, the Solicitor General’s position is that neither Nebraska nor Oklahoma can show any direct injury to their sovereign interests warranting SCOTUS review:

Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intrastate marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those States. But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible.

It’s great for the cannabis industry to see the federal government’s number one attorney telling SCOTUS it lacks jurisdiction to hear this case. Nonetheless, these arguments are all based on procedure, not on the actual merits of the case. The Feds are essentially trying to shut down this lawsuit without having to navigate any of the factual or legal issues in play, including whether federal law preempts Colorado’s recreational marijuana laws.

Though I would like to see the Feds tout the tenets of the Cole Memo and admit there is no federal preemption if a state opts to legalize marijuana with a robust licensing and taxation system, if SCOTUS dismisses the suit on procedural grounds it will still be a big “W” for the state-legal cannabis industry.

Sponsored

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

Topics

, , , , , ,