West v. Lynch

• Decision Date: 18 January 2017
• Docket Number: No. 15-5107,15-5107
• Citation: 845 F.3d 1228
• Parties: Arthur S. WEST, Appellant v. Loretta E. LYNCH, Attorney General of the United States, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

845 F.3d 1228

Arthur S. WEST, Appellant

v.Loretta E. LYNCH, Attorney General of the United States, et al., Appellees

No. 15-5107

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2016

Decided January 18, 2017

David M. Zionts, Washington, DC, appointed by the court, argued the cause as amicus curiae in support of the appellant. Robert A. Long, Jr., New York, NY, was with him on the briefs.

Arthur S. West, pro se, filed the briefs for the appellant.

Nicolas Y. Riley, Attorney, United States Department of Justice, argued the cause for the federal appellees. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark B. Stern, Attorney, were with him on the brief.

Jeffrey T. Even, Deputy Solicitor General, Office of the Attorney General for the State of Washington, argued the cause for appellees Inslee and Foster. Robert W. Ferguson, Attorney General, was with him on the brief.

Before: Henderson, Tatel and Millett, Circuit Judges.

Karen LeCraft Henderson, Circuit Judge:

The Constitution limits our "judicial Power" to "Cases" and "Controversies," U.S. CONST . art. III, § 2, cl. 1, and there is no justiciable case or controversy unless the plaintiff has standing, Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). To stave off dismissal for lack of standing, the plaintiff must sufficiently allege a "concrete and particularized" injury that is "fairly traceable to the challenged action of the defendant" and "likely" to be "redressed by a favorable decision." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations, brackets and ellipses omitted). Arthur West, the plaintiff here, does not meet this "irreducible constitutional minimum." Id . at 560, 112 S.Ct. 2130.

West lives in the state of Washington, which since the late 1990s has permitted the use of marijuana for medical purposes. He holds a medical marijuana authorization and uses marijuana for an undisclosed medical reason. He opposes the legalization of recreational marijuana, however, which Washington approved in 2012 through a ballot initiative. In West's view, the initiative and subsequent amendments are bad for the state's environment and for medical marijuana users like him.

All of Washington's laws governing marijuana—medical and recreational—are in tension with the Controlled Substances Act of 1970 (CSA), 21 U.S.C. §§ 801 et seq. , which makes it a federal crime to manufacture, distribute or possess with intent to distribute marijuana. In 2013, the United States Department of Justice (Department), through then-Deputy Attorney General James Cole, issued a guidance memorandum (Cole Memorandum) to federal prosecutors about enforcement of the CSA in cases involving marijuana. The memorandum, prompted by Washington's 2012 ballot initiative and a similar one in Colorado, advises federal prosecutors generally to rely on state authorities to address marijuana activity unless the state's regulatory system is insufficiently robust or the activity implicates a federal enforcement priority. West sued the Department, Deputy Attorney General Cole and other federal and state officials in district court, claiming in a pro se complaint that the Cole Memorandum unconstitutionally "commandeer[s]" state officials and institutions.¹ Pl.'s Am. Compl. (Compl.), Dkt. No. 14 at 1. He also claimed that all defendants violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq. , by failing to prepare an environmental impact statement before publication of the memorandum. He alleged that, taken together, Washington's laws and the memorandum subject him to injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana.

The relief he sought centered not on state law but on the memorandum: he asked that it be "void[ed]" and that all defendants "be compelled to comply with ... NEPA" in connection with the "federal ... response" to the state's legalization of recreational marijuana. Compl. 18–19.

The district court dismissed the complaint, concluding (inter alia ) that West lacks standing. We agree. First, for his commandeering claim, West has not sufficiently alleged that setting aside the Cole Memorandum would redress his alleged injuries from the wider availability of recreational marijuana and new restrictions on medical marijuana. Second, for his NEPA claim, West has not sufficiently alleged that any adverse environmental effects of recreational marijuana on his own particularized interests are traceable to the memorandum. We therefore uphold the dismissal of his complaint.²

I. BACKGROUND

For our review, the facts are undisputed. We recite them primarily from West's complaint, accepting as true its well-pleaded factual allegations and drawing all reasonable inferences in West's favor. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). As necessary, we cull additional facts from other parts of the record. See Settles v. U.S. Parole Comm'n , 429 F.3d 1098, 1107 (D.C. Cir. 2005) (in deciding subject matter jurisdiction, court may "consider [ ] facts developed in the record beyond the complaint"). Before turning to the injuries alleged in the complaint, we summarize the regulatory backdrop against which they must be evaluated.

A. WASHINGTON'S MARIJUANA LAWS AND THE COLE MEMORANDUM

Since 1970, the CSA has made it a crime to manufacture, distribute or possess with intent to distribute controlled substances, 21 U.S.C. § 841(a)(1), including marijuana, id . § 812(c) (Schedule I(c)(10)). In late 1998, notwithstanding the CSA, Washington legalized the medical use of marijuana. Act of Nov. 3, 1998, ch. 2, 1999 Wash. Sess. Laws 1.³ Starting in 2011, a "qualifying patient" could join together with up to nine other qualifying patients to grow marijuana in a "collective garden" and transport the product for medical use. Act of Apr. 29, 2011, ch. 181, 2011 Wash. Sess. Laws 1345, 1355. A qualifying patient could possess up to 24 ounces of useable marijuana at a time. Id . at 1353.

In November 2012, Washington voters approved Initiative 502 (I-502), which legalized the recreational use of marijuana. Act of Nov. 6, 2012, ch. 3, 2013 Wash. Sess. Laws 28. I-502 set up a licensing regime for marijuana producers, processors and retailers. Id . at 33–52. It also provided for a marijuana excise tax and subjected retail marijuana sales to ordinary sales tax. Id . at 52–53. With the exception of a broad prohibition on using marijuana or marijuana-infused products "in view of the general public," id . at 44, I-502 did not modify the regime governing medical marijuana that had existed since the late 1990s, including provisions permitting the possession of up to 24 ounces of medical marijuana and allowing for the creation of collective gardens. Instead I-502 provided that any user over the age of 21 can, without violating "any ... provision of Washington state law," possess up to one ounce of useable marijuana. Id .; see id . at 42.

In early 2013, Washington Governor Jay Inslee met with a White House official to seek assurances that the federal government did not intend to "preempt[ ] ... state implementation of I-502, or pursue enforcement of federal criminal laws" in Washington "for those acting legally under [state] law." Pl.'s Supplemental Decl. and Exs. (Decl.), Dkt. No. 16 at 81. To the same end, Governor Inslee wrote a letter to Eric Holder, then-Attorney General of the United States, summarizing the regulatory and law enforcement strategies the state planned to implement in the wake of I-502.

In a letter dated August 29, 2013, Attorney General Holder informed Governor Inslee—and Governor John Hickenlooper of Colorado, another state that had legalized the recreational use of marijuana—that "while the Department will not at this time seek to challenge your state's law, we will nevertheless continue to enforce the Controlled Substances Act in your state." Decl. 71. The Attorney General also enclosed the Cole Memorandum, which was issued that same day to all United States Attorneys.

The Cole Memorandum updated marijuana-related CSA guidances earlier issued to federal prosecutors in 2009 and 2011.⁴ The memorandum "applies to all federal enforcement activity ... concerning marijuana in all states." Decl. 72. It is "solely ... a guide to the exercise of investigative and prosecutorial discretion" and "does not alter in any way the Department's authority to enforce federal law ... regardless of state law." Id . at 75. It advises federal prosecutors "to review marijuana cases on a case-by-case basis" in deciding how to deal with "marijuana-related activity." Id . at 74. It directs them to "weigh all available information and evidence," including whether the activity "is demonstrably in compliance with a strong and effective state regulatory system." Id . It declares that "enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity" unless the state's "regulatory structure" and "enforcement efforts" "are not sufficiently robust." Id . That arrangement is meant to enable federal prosecutors to focus on "enforcement priorities that are particularly important to the federal government [,]" including prevention of violence, organized crime, interstate distribution, distribution to minors and use on federal property. Id . at 72–73. Finally, the memorandum states that, if marijuana-related activity "interferes with any one or more of these priorities," federal prosecution may be warranted "regardless of state law." Id . at 73.

In the first few years after Washington voters approved I-502, medical marijuana and recreational marijuana were governed by two parallel strands of Washington law, neither of which mentioned the other. As noted earlier, a user of medical marijuana could grow it in a collective garden with other...