Safe Streets Alliance v. Hickenlooper, 16-1048

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBRISCOE, Circuit Judge.
Citation859 F.3d 865
Parties SAFE STREETS ALLIANCE; Phillis Windy Hope Reilly; Michael P. Reilly, Plaintiffs–Appellants, v. John W. HICKENLOOPER, in his official capacity as Governor of Colorado; Barbara J. Brohl, in her official capacity as Executive Director of the Colorado Department of Revenue; James Burack, in his official capacity as Director of the Colorado Marijuana Enforcement Division; The Board of County Commissioners of the County of Pueblo; Pueblo County Liquor & Marijuana Licensing Board, Defendants–Appellees, and Alternative Holistic Healing, LLC, d/b/a Rocky Mountain Organic; Joseph R. Licata; Jason M. Licata; 6480 Pickney, LLC; Parker Walton ; Camp Feel Good, LLC; Roger Guzman; Blackhawk Development Corporation ; Washington International Insurance Co.; John Doe 1, Defendants. State of Nebraska; State of Oklahoma, Intervenors. State of Washington; State of Oregon; Robert A. Mikos; Sam Kamin; Douglas A. Berman; Robert J. Watkins; Alex Kreit, Amici Curiae. Justin E. Smith; Chad Day ; Shayne Heap; Ronald B. Bruce; Casey Sheridan; Frederick D. Mckee; John D. Jenson; Mark L. Overman; Burton Pianalto; Charles F. Moser ; Paul B. Schaub; Scott DeCoste, Plaintiffs–Appellants, v. John W. Hickenlooper, Governor of the State of Colorado, Defendant–Appellee. State of Washington; State of Oregon; Robert A. Mikos; Sam Kamin; Douglas A. Berman; Robert J. Watkins; Alex Kreit, Amici Curiae. Safe Streets Alliance; Phillis Windy Hope Reilly; Michael P. Reilly, Plaintiffs–Appellants, v. Alternative Holistic Healing, LLC, d/b/a Rocky Mountain Organic; Joseph R. Licata; Jason M. Licata; 6480 Pickney, LLC; Parker Walton ; Camp Feel Good, LLC, Defendants–Appellees, and Roger Guzman; Blackhawk Development Corporation ; Washington International Insurance Co.; The Board of County Commissioners of the County of Pueblo; Pueblo County Liquor & Marijuana Licensing Board; John Doe 1, Defendants.
Docket NumberNo. 16-1048, No. 16-1095, No. 16-1266,16-1048
Decision Date07 June 2017

859 F.3d 865

SAFE STREETS ALLIANCE; Phillis Windy Hope Reilly; Michael P. Reilly, Plaintiffs–Appellants,
v.
John W. HICKENLOOPER, in his official capacity as Governor of Colorado; Barbara J. Brohl, in her official capacity as Executive Director of the Colorado Department of Revenue; James Burack, in his official capacity as Director of the Colorado Marijuana Enforcement Division; The Board of County Commissioners of the County of Pueblo; Pueblo County Liquor & Marijuana Licensing Board, Defendants–Appellees,
and
Alternative Holistic Healing, LLC, d/b/a Rocky Mountain Organic; Joseph R. Licata; Jason M. Licata; 6480 Pickney, LLC; Parker Walton ; Camp Feel Good, LLC; Roger Guzman; Blackhawk Development Corporation ; Washington International Insurance Co.; John Doe 1, Defendants.


State of Nebraska; State of Oklahoma, Intervenors.


State of Washington; State of Oregon; Robert A. Mikos; Sam Kamin; Douglas A. Berman; Robert J. Watkins; Alex Kreit, Amici Curiae.


Justin E. Smith; Chad Day ; Shayne Heap; Ronald B. Bruce; Casey Sheridan; Frederick D. Mckee; John D. Jenson; Mark L. Overman; Burton Pianalto; Charles F. Moser ; Paul B. Schaub; Scott DeCoste, Plaintiffs–Appellants,
v.
John W. Hickenlooper, Governor of the State of Colorado, Defendant–Appellee.


State of Washington; State of Oregon; Robert A. Mikos; Sam Kamin; Douglas A. Berman; Robert J. Watkins; Alex Kreit, Amici Curiae.


Safe Streets Alliance; Phillis Windy Hope Reilly; Michael P. Reilly, Plaintiffs–Appellants,
v.
Alternative Holistic Healing, LLC, d/b/a Rocky Mountain Organic; Joseph R. Licata; Jason M. Licata; 6480 Pickney, LLC; Parker Walton ; Camp Feel Good, LLC, Defendants–Appellees,
and
Roger Guzman; Blackhawk Development Corporation ; Washington International Insurance Co.; The Board of County Commissioners of the County of Pueblo; Pueblo County Liquor & Marijuana Licensing Board; John Doe 1, Defendants.

No. 16-1048
No. 16-1095
No. 16-1266

United States Court of Appeals, Tenth Circuit.

FILED June 7, 2017


Brian W. Barnes and David H. Thompson (Charles J. Cooper, Howard C. Nielson, Jr., and Peter A. Patterson, with them on the briefs), of Cooper & Kirk, PLLC, Washington D.C., for Plaintiffs-Appellants in Nos. 16-1048 and 16-1266.

Patrick R. Wyrick, Solicitor General of Oklahoma (E. Scott Pruitt, Attorney General of Oklahoma, and Mithun Mansinghani, Deputy Solicitor General, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, Douglas J. Peterson, Attorney General of Nebraska, Ryan S. Post and David A. Lopez, Assistant Attorneys General, Office of the Nebraska Attorney General, Lincoln, Nebraska, with him on the briefs), for Intervenors, State of Oklahoma and State of Nebraska.

Matthew D. Grove, Assistant Solicitor General of Colorado (Cynthia H. Coffman, Attorney General, Claudia Brett Goldin, First Assistant Attorney General, Scott R. Bauer, Senior Assistant Attorney General, Sueanna P. Johnson, Assistant Attorney General, and Frederick R. Yarger, Solicitor General, with him on the brief), all of the Office of the Attorney General, Denver,

859 F.3d 876

Colorado, for Defendants-Appellees, John W. Hickenlooper, Barbara J. Brohl, and James Burack.

Matthew W. Buck, of The Cannabis Law Firm, Denver, Colorado, for Alternative Holistic Healing, LLC, d/b/a Rocky Mountain Organic, Joseph R. Licata, Jason M. Licata, 6480 Pickney, LLC, Parker Walton, and Camp Feel Good, LLC, Defendants-Appellees in No. 16-1266.

Paul V. Kelly, John J. Commisso, and Anne E. Selinger, of Jackson Lewis P.C., Boston, Massachusetts, filed a brief on behalf of Plaintiffs-Appellants in No. 16-1095.

Josh A. Marks and Melanie B. Lewis, of Berg Hill Greenleaf Ruscitti LLP, Boulder, Colorado, and Gregory J. Styduhar, Pueblo County Attorney, Pueblo, Colorado, filed a brief on behalf of Defendants-Appellees, Pueblo County Liquor & Marijuana Licensing Board and the Board of County Commissioners of the County of Pueblo, Colorado.

Robert W. Ferguson, Attorney General, Jeffrey T. Even, Deputy Solicitor General, and Bruce L. Turcott, Assistant Attorney General, State of Washington, Olympia, Washington, filed a brief on behalf of Amici Curiae, State of Washington and State of Oregon.

Michael Francisco, of MRDLaw, Denver, Colorado, and Robert A. Mikos, Professor of Law, Vanderbilt University Law School, Nashville, Tennessee, filed a brief on behalf of Amici Curiae, Law Professors in Support of the Respondent State of Colorado.

Before BRISCOE, HARTZ and HOLMES, Circuit Judges.

BRISCOE, Circuit Judge.

These three appeals arise from two cases that concern the passage, implementation, and alleged effects of Amendment 64 to the Colorado Constitution, Colo. Const. art. XVIII, § 16. Amendment 64 repealed many of the State's criminal and civil proscriptions on "recreational marijuana,"1 and created a regulatory regime designed to ensure that marijuana is unadulterated and taxed, and that those operating marijuana-related enterprises are, from the State's perspective, licensed and qualified to do so. Of course, what Amendment 64 did not and could not do was amend the United States Constitution or the Controlled Substances Act (CSA), 21 U.S.C. §§ 801 –904, under which manufacturing, distributing, selling, and possessing with intent to distribute marijuana remains illegal in Colorado. See U.S. Const. art. VI, cl. 2. The three appeals at issue and two related motions to intervene raise four principal disputes stemming from the alleged conflict between the CSA and Colorado's new regime.

Two of the appeals were brought in Safe Streets Alliance v. Alternative Holistic Healing, LLC . First, in No. 16-1266, two Colorado landowners challenge the district court's dismissal of their claims brought under the citizen-suit provision of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c), against certain affiliates of a State- and county-licensed marijuana manufactory that allegedly has injured the landowners'

859 F.3d 877

adjacent property. We conclude that the landowners have plausibly alleged at least one § 1964(c) claim against each of those defendants. We therefore reverse, in part, the dismissal of those claims and remand for further proceedings.

Second, in No. 16-1048, those landowners and an interest group to which they belong appeal the district court's dismissal of their purported causes of action "in equity" against Colorado and one of its counties for ostensibly also having injured the landowners' property by licensing that manufactory. The landowners and the interest group allege that Amendment 64's regime is preempted by the CSA, pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the CSA's preemption provision, 21 U.S.C. § 903.2 We conclude that neither the landowners nor the interest group purport to have any federal substantive rights that have been injured by Colorado or the county's actions. And because they have no substantive rights in the CSA to vindicate, it follows inexorably that they cannot enforce § 903"in equity" to remedy their claimed injuries. We therefore affirm the dismissal of their preemption claims.

The third appeal, No. 16-1095, was filed in Smith v. Hickenlooper . In that case, a group of Colorado, Kansas, and Nebraska sheriffs and county attorneys sued Colorado on similar theories that Amendment 64's regime is preempted by the CSA. The district court dismissed their claims, and we consolidated the appeal with No. 16-1048. Because those plaintiffs also do not claim injuries to their federal substantive rights, we likewise affirm.

Finally, the States of Nebraska and Oklahoma moved to intervene in Safe Streets Alliance and Smith while they were pending on appeal. Those States claim that Amendment 64 injures their sovereign interests and those of their citizens, and that its enforcement is preempted by the CSA. We granted their motion in No. 16-1048 and heard their arguments, which confirmed that their controversy is with Colorado. Given that fact, we must confront 28 U.S.C. § 1251(a), which forbids us from exercising jurisdiction over controversies between the States. We therefore cannot permit Nebraska and Oklahoma to intervene, or even confirm that they have a justiciable controversy that may be sufficient for intervention. Consequently, we vacate the order granting intervention in Safe Streets Alliance and deny the States' motions in both cases.

I. Standards of Review

Before addressing each of those issues, we first discuss the applicable standards of review. The district court dismissed the claims before it on the basis of Federal Rules of Civil Procedure 12(b)(1) and (6). Rule 12(b)(1)"allows a court to dismiss a complaint for lack of subject matter jurisdiction. If the district court did so without taking evidence, as the court did here, our review is de novo." Pueblo of Jemez v. United States , 790 F.3d 1143, 1151 (10th Cir. 2015) (citing Becker v. Ute Indian Tribe , 770 F.3d 944, 946 (10th Cir. 2014) ). Such a "facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the

859 F.3d 878

complaint," and the "district court must accept the allegations in the complaint as true." Id. at 1148 n.4 (citation omitted). We also accept those factual allegations as true in...

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264 practice notes
  • United States v. State, 1:21-CV-796-RP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 6, 2021
    ...have declined to read in statutory causes of action where none are provided by the legislature. See Safe Streets All. v. Hickenlooper , 859 F.3d 865, 903 (10th Cir. 2017) ("[T]o determine whether a private plaintiff may enforce the [Controlled Substances Act], we must first determine whethe......
  • In re Epipen, MDL No: 2785
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • June 23, 2021
    ...business or property was injured; and (3) that the defendant's violation is the cause of that injury." Safe Sts. All. v. Hickenlooper , 859 F.3d 865, 881 (10th Cir. 2017) (citations omitted).Here, plaintiffs allege that defendants "joined together in an association-in-fact enterprise and us......
  • In re EpiPen Marketing, Sales Practices & Antitrust Litig., MDL No: 2785
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 27, 2020
    ...it must ask is whether the alleged violation led directly to the plaintiff's injuries.'" SafePage 83 Streets All. v. Hickenlooper, 859 F.3d 865, 889 (10th Cir. 2017) (quoting Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461 (2006)). The Supreme Court has instructed that "'no need [exists......
  • Tay v. Kiesel (In re State Question No. 807, Initiative Petition No. 423), 118,582
    • United States
    • Supreme Court of Oklahoma
    • June 23, 2020
    ...(D. Oregon 2018) ; Bokaie v. Green Earth Coffee LLC , 2018 WL 6813212 (N.D. Cali. 2018). But see Safe Streets Alliance v. Hickenlooper , 859 F.3d 865 (10th Cir. 2017). Of note, the Tenth Circuit in Safe Streets Alliance also concluded that the plaintiff organizations had failed to allege an......
  • Request a trial to view additional results
230 cases
  • Babakr v. Goerdel, No. 20-2037-SAC-JPO
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • February 25, 2021
    ...legal conclusions, those allegations are not subject to the same rule of being accepted as true. Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) "A complaint cannot survive a motion to dismiss unless it 'contain[s] sufficient factual matter, accepted as true, to st......
  • United States v. Texas, 1:21-CV-796-RP
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • October 6, 2021
    ...have declined to read in statutory causes of action where none are provided by the legislature. See Safe Streets All. v. Hickenlooper, 859 F.3d 865, 903 (10th Cir. 2017) (“[T]o determine whether a private plaintiff may enforce the [Controlled Substances Act], we must first determine whether......
  • Johnson v. Spencer, No. 17-8089
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 13, 2020
    ...and related authorities. We, of course, may affirm on any ground supported by the record. See, e.g. , Safe Sts. All. v. Hickenlooper , 859 F.3d 865, 879 (10th Cir. 2017) ("[W]e of course ‘can affirm a lower court’s ruling on any grounds adequately supported by the record, even grounds not r......
  • Crimson Galeria Ltd. v. Healthy Pharms, Inc., Civil Action No. 17-cv-11696-ADB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 21, 2018
    ...15-cv-00349-REB-MLC, 2016 WL 11384332, at *18–19 (D. Colo. Feb. 8, 2016), aff'd in part, rev'd in part, Safe Streets All. v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017).Defendant Healthy Pharms operates a marijuana cultivation facility at 401 East Main Street, Georgetown, Massachusetts, pur......
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2 books & journal articles
  • RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...https://www. justice.gov/usao-pr/pr/seven-puerto-rico-police-off‌icers-charged-rico-act-violations. 405. Safe Sts. All. v. Hickenlooper, 859 F.3d 865, 891 (10th Cir. 2017). 406. Id. at 887–88. 407. See Safe Streets, 859 F.3d 865; see also RICO Threat Looms Over Cannabis Businesses, LAW 360 ......
  • CIVIL RICO SUITS AGAINST HARM-CAUSING MARIJUANA OPERATIONS: MOMTAZ1 FAMILY, LLC V. WAGNER AS A CASE STUDY.
    • United States
    • South Dakota Law Review Vol. 67 Nbr. 3, September 2022
    • September 22, 2022
    ...the "deliberate policy choices on the part of Congress"). (34.) 18 U.S.C.A. [section] 1964(c). (35.) E.g., Safe Sts. All. v. Hickenlooper, 859 F.3d 865. 881. 887 (10th Cir. 2017); see also Scdima. S.P.R.L.. 473 U.S. at 496 (addressing that "[t]hc plaintiff only has standing [under RICO] if,......

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