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.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Excellent reporting by journalist Ellen Dennis in the The Spokesman Review discusses the U.S. government’s efforts to reclassifying marijuana as a less harmful drug.

The U.S. Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III drug. If finalized, this change in classification by the U.S. Department of Justice would federally recognize the medical use of cannabis. It would also ease banking regulations, thus making it far more manageable for pot shops to do business.

What Do the Drug Schedule Levels Mean?

Schedule I substances are defined by the federal Drug Enforcement Administration as drugs with no currently accepted medical use and a high potential for abuse. Right now, marijuana is a Schedule I Drug. It lists alongside heroin, peyote, lysergic acid diethylamide (LSD), and 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone.

Schedule II drugs are defined by the government as dangerous drugs with a high potential for abuse. Examples of Schedule II drugs include fentanyl, oxycodone (Oxycontin), methamphetamine, Adderall and Ritalin. Schedule III substances are defined as drugs with a moderate-to-low potential for physical and psychological dependence. Examples of Schedule III drugs include ketamine, anabolic steroids and testosterone.

What Would Rescheduling Do?

According to the article, rescheduling the drug would be a huge positive for people who work in the weed industry. It would open up federal funding, government loans and access to government emergency relief funds. Rescheduling would also help break down stigma surrounding cannabis.

That’s helped fuel fast growth in the marijuana industry, with an estimated worth of nearly $30 billion. Easing federal regulations could reduce the tax burden that can be 70% or more for businesses, according to industry groups. It could also make it easier to research marijuana, since it’s very difficult to conduct authorized clinical studies on Schedule I substances.

The Secure and Fair Enforcement Regulation Banking Act is a proposed federal law that would ensure that all businesses – including state-sanctioned weed stores – have access to deposit accounts, insurance and other financial services.

Currently, Pot Shops in Washington by law may only take payments in cash form, leaving them vulnerable to armed robberies. Some store owners across the state have done their best to keep the environments safe for workers, including installing panic buttons behind the counters and ramping up security systems, but the best way to bolster safety would be to allow cannabis sellers to accept debit and credit card payments, industry players say.

It is possible that rescheduling could allow the cannabis industry to claim business deductions on federal tax forms, since the Internal Revenue Service doesn’t allow that for any business that sells a Schedule I controlled substance.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any crime. Hiring an effective and competent defense attorney is the first and best step toward justice.