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Safe Sts. All. v. Hickenlooper

United States Court of Appeals for the Tenth Circuit

June 7, 2017, Filed

No. 16-1266, No. 16-1095, No. 16-1266

Opinion

 [*876]  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 Amendment 64 repealed many of the State's criminal and civil proscriptions on "recreational marijuana,"1 and created a regulatory regime designed to ensure that marijuana is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 [**4]  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'  [*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 [**5]  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.

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859 F.3d 865 *; 2017 U.S. App. LEXIS 10101 **; 97 Fed. R. Serv. 3d (Callaghan) 1641; 2017 WL 2454359

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, No. 16-1048, 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, No. 16-1095 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.

Prior History:  [**1] APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. Nos. 1:15-CV-00349-REB-CBS and 1:15-CV-00462-WYD-NYW).

Smith v. Hickenlooper, 164 F. Supp. 3d 1286, 2016 U.S. Dist. LEXIS 23889 (D. Colo., Feb. 26, 2016)Nebraska v. Colorado, 136 S. Ct. 1034, 194 L. Ed. 2d 545, 2016 U.S. LEXIS 1882 (U.S., Mar. 21, 2016)Safe Sts. Alliance v. Alternative Holistic Healing, LLC, 2016 U.S. Dist. LEXIS 5934 (D. Colo., Jan. 19, 2016)Safe Sts. Alliance v. Alternative Holistic Healing, LLC, 2016 U.S. Dist. LEXIS 36113 (D. Colo., Mar. 21, 2016)

CORE TERMS

Marijuana, cause of action, district court, federal law, enterprise, injuries, rights, providers, substantial rights, licenses, violations, federal statute, preempted, vindicate, injunctive relief, preemption claim, allegations, pled, racketeering activity, invoking, enjoin, cases, federal right, intervene, sovereign, federal substantive, private citizen, purported, recreational, adjacent

Civil Procedure, Appeals, Standards of Review, De Novo Review, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Subject Matter Jurisdiction, Jurisdiction Over Actions, Limited Jurisdiction, Justiciability, Standing, Motions to Dismiss, Failure to State Claim, Pleadings, Complaints, Requirements for Complaint, Antitrust & Trade Law, Private Actions, Racketeer Influenced & Corrupt Organizations, Claims, Scope, Criminal Law & Procedure, Criminal Offenses, Controlled Substances, Real Property Law, Torts, Nuisance, Types of Nuisances, Elements, Jurisdiction, Federal Questions, Constitutional Law, Supremacy Clause, Federal Preemption, Equity, Relief, Governments, Legislation, Statutory Remedies & Rights, Case or Controversy, Standing, Particular Parties, State & Territorial Governments, Claims By & Against