Oklevueha Native American Church Of Haw.i Inc. v. Holder

• Decision Date: 29 June 2010
• Docket Number: Civil No. 09-00336 SOM/BMK.
• Citation: 719 F.Supp.2d 1217
• Parties: OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.; Michael Rex “Raging Bear” Mooney, Plaintiffs, v. Eric H. HOLDER, Jr., U.S. Attorney General; Michele Leonhart, Acting Administrator, U.S. Drug Enforcement Administration; Florence T. Nakakuni, U.S. in Part and Denying in Part Motion to Dismiss First Amended Complaint Attorney for the District of Hawaii, Defendants.
• Court: U.S. District Court — District of Hawaii

719 F.Supp.2d 1217

OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.; Michael Rex “Raging Bear” Mooney, Plaintiffs,

v.Eric H. HOLDER, Jr., U.S. Attorney General; Michele Leonhart, Acting Administrator, U.S. Drug Enforcement Administration; Florence T. Nakakuni, U.S. in Part and Denying in Part Motion to Dismiss First Amended Complaint Attorney for the District of Hawaii, Defendants.

Civil No. 09-00336 SOM/BMK.

United States District Court,D. Hawai‘i.

June 22, 2010.

Order Denying Clarification and Reconsideration June 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael A. Glenn, Honolulu, HI, for Plaintiffs.

Derrick K. Watson, Office of the United States Attorney, Honolulu, HI, James C. Luh, United States Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT

SUSAN OKI MOLLWAY, Chief Judge.

I. INTRODUCTION.

Plaintiffs Michael Rex “Raging Bear” Mooney and the Oklevueha Native American Church of Hawaii, Inc., allege that cannabis is used in their religion and assert that their right to religious freedom is being infringed on by United States drug laws, specifically 21 U.S.C. § 841. On February 23, 2010, the court dismissed Plaintiffs' Complaint, ruling that their claims were not sufficiently ripe to justify the bringing of a preenforcement challenge to federal drug laws. Plaintiffs were given leave to file an amended complaint curing the deficiencies.

On March 22, 2010, Plaintiffs filed a First Amended Complaint that reasserts a right to cultivate, use, possess, and distribute cannabis free of federal restrictions. The Amended Complaint also seeks the return of or compensation for cannabis allegedly seized by the Government in Hawaii last year when it was sent via FedEx.

Defendants have moved for dismissal of the First Amended Complaint, arguing that the claims are not ripe on their face, that Oklevueha lacks standing to assert claims on behalf of its members, and that Plaintiffs fail to allege sufficient claims in any event. Because this court agrees that the First Amended Complaint has not cured the deficiencies of the initial Complaint and fails to set forth a facially ripe claim regarding Plaintiffs' challenge to federal laws that the Government has not sought to enforce against them, Defendants' motion is granted with respect to that claim. To the extent the First Amended Complaint asserts tort claims for the return of or compensation for the allegedly seized cannabis, those claims are dismissed based on the Government's sovereign immunity and the Supremacy Clause. That leaves for further adjudication only the return of or compensation for the seized cannabis under the Religious Freedom Restoration Act of 1993.

II. BACKGROUND.

Although the original preenforcement claim was dismissed with leave to amend to allow Plaintiffs to allege facts demonstrating a ripe claim, the First Amended Complaint added very little detail addressing the ripeness of the preenforcement claim.

Mooney is the “Spiritual Leader” and founded Oklevueha “to espouse the virtues of, and to consume entheogens,” psychoactive substances used in a religious, shamanic or spiritual contexts. See First Amended Complaint, Introduction (March 22, 2010). Plaintiffs seek a declaration that they are allowed to grow, possess, use, and distribute cannabis free from federal penalties, including criminal prosecutions and civil sanctions and forfeitures.

Plaintiffs allege that Oklevueha has 250 members in Hawaii and is one of 100 branches of the Native American Church. See id. ¶¶ 19, 41. Plaintiffs further allege that the Native American Church has an estimated 500,000 members in more than 24 states. Id. ¶ 19. The First Amended Complaint alleges that each branch of the Church is independent and is “responsible for its own Church management, ceremonies, and Medicine People.” Id. ¶ 22.

Plaintiffs allege that all 250 members of Oklevueha use cannabis in religious ceremonies, and that use of cannabis is “an essential and necessary component of [their] religion.” Id. ¶¶ 41, 48. Plaintiffs allege that “certain North American Indian Tribes” have used cannabis for religious and therapeutic purposes. Id. ¶ 23. Plaintiffs allege that Mooney “is of Seminole Native American ancestry.” Id. ¶ 10. Plaintiffs do not, however, allege that Seminoles traditionally use cannabis in religious ceremonies or that any of the 250 members of Oklevueha follows the traditional Seminole religion.

Mooney says that he uses the cannabis sacrament daily. He alleges that he also uses cannabis along with other members of Oklevueha in twice-monthly “sweats” during the new moon and full moon. See id. ¶ 37. There are no allegations describing what a “sweat” is, how many people participate in the “sweats,” the manner in which cannabis is used during the “sweats,” or how much cannabis is used. The First Amended Complaint does allege, however, that the “sweats” are held at various “private locations on Oahu” and that Plaintiffs “acquire their cannabis by cultivating it or acquiring it from other churches, caregivers or other state-sanctioned methods.” Id. ¶¶ 37, 40.

Plaintiffs claim to fear criminal prosecution for cultivating, consuming, possessing, and distributing cannabis. Id. ¶¶ 52-53.

Plaintiffs allege that approximately one pound of cannabis, valued at approximately $7,000, was seized at an unidentified time by United States drug enforcement authorities in Hawaii before FedEx could deliver the cannabis to Mooney. Id. ¶ 49. There is no allegation that Plaintiffs have been prosecuted or threatened with prosecution in connection with that seizure. Although the First Amended Complaint does not allege when this seizure occurred, Mooney previously submitted an affidavit indicating that the seizure occurred approximately one year ago, in June 2009. This court notes the time-frame in Mooney's affidavit for background purposes only and does not rely on it in ruling on the current motion.

Plaintiffs allege that, in March 2010, the U.S. Drug Enforcement Administration raided THC Ministry, also known as The Hawaii Cannabis Ministry, an alleged Big Island of Hawaii church that also uses cannabis in religious events. See id. ¶ 51. However, the First Amended Complaint does not allege any connection between the THC Ministry and Oklevueha or indicate that they are similarly situated.

III. STANDARD.

The applicable legal standard was set forth in this court's previous order dismissing the original Complaint. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, No. 09-00336, 2010 WL 649753, at *2 (D.Haw. Feb. 23, 2010). That standard is incorporated herein by reference.

IV. THE PREENFORCEMENT CLAIMS ARE DISMISSED.

In its previous order, the court ruled that Plaintiffs' preenforcement challenge to the federal drug laws under the Religious Freedom Restoration Act of 1993 was not ripe. The court ruled that the Complaint failed to allege facts demonstrating a genuine threat of imminent prosecution. See Oklevueha, 2010 WL 649753, at *4-*5 (citing Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000)). The court noted that, when a litigant brings a preenforcement challenge to a statute, “neither the mere existence of a proscriptive statute nor a generalized threat of prosecution” will satisfy the ripeness requirement. Oklevueha, 2010 WL 649753, at *5 (citing Thomas, 220 F.3d at 1139). The court further ruled that determining the presence of a genuine threat of prosecution involves a review of three factors: whether Plaintiffs have articulated a concrete plan to violate the law, whether prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement of the statute. Oklevueha, 2010 WL 649753, at *5 (citing Thomas, 220 F.3d at 1139).

In dismissing the preenforcement claims asserted in the Complaint, the court reasoned that the Complaint did not allege a concrete plan to violate the law, as it did not allege when, where, and under what circumstances Plaintiffs intended to use cannabis. See Oklevueha, 2010 WL 649753, at *5. With respect to the second factor, the court ruled that the Complaint was devoid of any threat of prosecution. Id. Although cannabis had been seized in June 2009, the court noted that neither Mooney nor anyone else associated with Oklevueha had ever been threatened with prosecution in connection with that seizure. Id. Finally, with respect to the third factor, the court determined that the Complaint was devoid of allegations concerning the enforcement of the federal drug laws. Although the court noted that the Government does enforce the statute, it stated that it was in no position to guess how frequently and under what circumstances cannabis seizures lead to criminal charges. Id.

The court also dismissed the original Complaint because it failed to satisfy the prudential component of ripeness. That is, the Complaint essentially asked the court to decide constitutional questions in a vacuum and sought an order enjoining the Government from enforcing drug laws without any delineation of what the Government may and may not regulate. The court noted that it could not tell whether Plaintiffs were essentially seeking immunity for cannabis importation and distribution of thousand of pounds per month or whether they were asking to be allowed to pass a single cannabis cigarette among Oklevueha members. Id. at *8.

The First Amended Complaint has added little detail going to the ripeness of the preenforcement claims. For the reasons set forth in this court's previous order, the First Amended Complaint also fails to allege a ripe claim.

1. Constitutional Component.

The court reiterates here that “neither the mere existence of a proscriptive statute nor a generalized threat of prosecution” will satisfy the ripeness requirement. Thomas, 220 F.3d at 1139. “Rather, there must be a genuine threat of...