You Can’t Transport Marijuana On a Plane, Even Within States Where Pot is Legal

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Illustration courtesy of Gene Kim

In Fejes v. FAA, No. 22-70129 (April 22, 2024), the 9th Circuit Court of Appeals held that people cannot transport marijuana by airplane even when travelling solely within states where cannabis is decriminalized.

FACTUAL BACKGROUND

Mr. Fejes transported marijuana—which is legal under Alaska law, but a controlled substance under federal law—by aircraft within Alaska. In some remote parts of Alaska, aircraft are the only mode of delivering goods, including marijuana. Fejes held a pilot certificate issued by the Federal Aviation Administration (FAA). At least three times, Fejes piloted an aircraft to transport and distribute marijuana to retail stores within the state.

After an investigation, the FAA revoked his pilot certificate under the authority that distributing marijuana via aircraft is a federal crime. Fejes appealed the order revoking his pilot’s certificate through numerous agency proceedings. In those proceedings, Fejes admitted that he piloted an aircraft to distribute marijuana within Alaska. However, he argued that his conduct fell outside of reach of federal laws revoking pilot’s licenses for controlled substance violations. Fejes now appealed his information to the 9th Circuit Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit rejected Feyes’ argument that the FAA lacks jurisdiction to revoke his pilot certificate. It reasoned that under the Commerce Clause, airplanes are instrumentalities of interstate commerce. As such, airspace is a channel of commerce within congressional authority.

“We have held that cars are instrumentalities of interstate commerce. United States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995). Even if an airplane, like a car, is mainly used for intrastate activities, its operations could substantially impact interstate commerce. Thus, Fejes’s conduct falls within the second category as well.”  ~9th Circuit Court of Appeals

The 9th Circuit further reasoned that although many states have legalized recreational marijuana, it continues to be a controlled substance federally.

“The public may believe that a state’s legalization of marijuana broadly protects marijuana use. But state law legalizing marijuana distribution does not negate federal law criminalizing the same action . . . And marijuana is still illegal in many contexts under federal law, even in states that provide legal allowances.” ~9th Circuit Court of Appeals

With that, the 9th Circuit upheld the revocation of Mr. Feyes’s pilot’s license.

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