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![handle is hein.crs/crsmthaacsz0001 and id is 1 raw text is: Legal Sidebar
Cities Try, and Fail (So Far), to Prevent Federal
Marijuana Enforcement
To paraphrase Mark Twain, reports of the death of federal marijuana enforcement appear to have been
exaggerated. While federal authorities have created a perceived safe harbor for the operation of marijuana
businesses in states that have legalized the drug, the Department of Justice (DOJ) is still puo.shing
violations of the Controlled Substances Act (CSA) when a business's activities threaten certain core federal
interests., such as preventing the distribution of marijuana to children and combating the involvement of
criminal enterprise. One tool the DOJ has used to close down offending dispensaries, grow facilities, and
retail shops is civil forfeiture-a legal process by which the government may seize and liquidate a wide
array of property used or intended to be used to facilitate a violation of the CSA. Once a decision to
initiate a forfeiture proceeding has been made, there appears to be very little that states or localities, that
actively support the operation of marijuana businesses, can do to prevent federal authorities from enforcing
federal law.
Two recent California cases demonstrate how a pair of cities have attempted to prevent the federal
government from seizing and shuttering marijuana businesses operating within each city's boundaries. In
each case, the federal government initiated a forfeiture action against an operating dispensary: in the
Berkeley case, the forfeiture action was initiated because the dispensary was operating in proximity to a
preschool; and in the Oakland case, it appears that the forfeiture action was initiated because of the
dispensary's largesze. In response, the city in which the dispensary is located filed suit in an effort to
oppose the action, and in each case the federal district court dismissed the city's claim.
In Unite Sr; L. the district court found
that the City of Berkeley lacked standing to contest a forfeiture proceeding against Berkeley Patients Group,
a medical marijuana dispensary. Under Ninth Circuit precedent, a party satisfies the standing requirement
for participation in a forfeiture proceeding only by i a colorable interest in the property, which
includes an ownership or a possessory interest. The city admitted that it had no ownership stake in the
facility, but argued that it had other non-possessory interests in the continued operation of the
dispensary, such as maintaining safe and affordable distribution of medical cannabis to patients.. .within the
City of Berkeley, and a strong interest in the substantial loss of tax revenue that would result from the
closing of the dispensary. The dispensary reportI had provided hundreds of thousands of dollars in tax
revenue to the city. The district court rejected both arguments and dismissed the city's claim.
Rather than directly intervene in a forfeiture proceeding, the City of Oakland filed a separate claim in
federal district court under the Administrative Procedure Act (APA), challenging DOJ's general authority to
pursue forfeiture against Harborside Health Center, an Oakland medical marijuana dispensary that paid over
$1 million in city taxes last year. That challenge was dismissed in Ci of Oakland v. Holder, on the grounds
that the claim did not satisfy the requirements for judicial review under the APA. The APA permits only the
review of final agency action for which there is no other adequate remedy in court. The court determined
that the decision to initiate a forfeiture proceeding was not a final action, as the mere filing of the action
does not result in any legal consequences. Moreover, in an important holding, the court held that there
was an existing and alternative adequate remedy: contesting the forfeiture proceeding directly, as was
done by the City of Berkeley in 2366 San Pablo Ave. The fact that Oakland likely could not (absent a
possessory interest in the forfeited property) avail itself of that process, did not render the
remedy.. .inadequate. It simply demonstrate[d] that the interests Plaintiff has identified -while significant
and wide reaching-are too far removed from the defendant property to give it standing...](ViewImageLocal?handle=hein.crs/crsmthaacsz0001&div=1&collection=&method=preview&ext=.png&size=3)