Order Granting in Part and Denying in Part Motion to Dismiss First Amended Complaint



Case 1:09-cv-00336-SOM-BMK Document 85 Filed 12/31/12 Page 1 of 25 PageID #: 736








ERIC H. HOLDER, JR., U.S. Attorney General; MICHELE LEONHART, Acting Administrator, U.S. Drug Enforcement



FLORENCE T. NAKAKUNI, U.S. Attorney for the District of Hawaii,



CIVIL NO. 09-00336 SOM/BMK





Plaintiffs Michael Rex “Raging Bear” Mooney and the Oklevueha Native American Church of Hawaii, Inc., allege that

marijuana (or, as they say, “cannabis”) is a central part of their religion. Plaintiffs assert that their right to religious

freedom is being infringed on by enforcement of federal drug laws, specifically 21 U.S.C. § 841. Defendants, all

Government officials, move to dismiss all claims. This court grants that motion only in part.


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On March 22, 2010, Plaintiffs filed a First Amended Complaint that asserted a right to cultivate, use, possess, and

distribute cannabis free of federal drug laws. The First Amended Complaint also sought the return of or compensation

for cannabis that the Government had seized from material shipped to Plaintiffs. See ECF No. 26.


On June 22, 2010, the court dismissed Plaintiffs’ “preenforcement claims,” i.e., claims that their rights were being

violated even though no drug charges against Plaintiffs had issued. The court ruled that those claims were not ripe and

dismissed the tort claims against Defendants for theft and conversion of Plaintiffs’ cannabis, citing the Supremacy

Clause. See ECF No. 34; 719 F. Supp. 2d 1217 (D. Haw. 2010).


On October 26, 2010, the court dismissed the remaining claim for the return of or compensation for the seized

cannabis. See ECF No. 48; 2010 WL 4386737 (D. Haw. Oct. 26, 2010).


On April 9, 2012, the Ninth Circuit Court of Appeals held that Plaintiffs’ preenforcement claims were ripe

because the Government had previously seized cannabis sent to Plaintiffs. The Ninth Circuit remanded those claims.


However, the Ninth Circuit affirmed this court’s decisions concerning the tort claims and the claim for the return of or

compensation for the seized cannabis. See ECF No. 58; 676 F.3d 829 (9th Cir. 2012).


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Given the Ninth Circuit’s rulings, the remaining claims are the preenforcement claims asserted in Count 1 (Religious

Freedom Restoration Act claim), Count 2 (American Indian Religious Freedom Act claim), Count 3 (Equal Protection

Clause claim), Count 4 (First Amendment free exercise of religion claim), Count 6 (Declaratory Judgment Act claim),

and Count 7 (injunctive relief claim).


On July 13, 2012, Defendants moved to dismiss all remaining claims. See ECF No. 63. That motion is granted in

part and denied in part. To the extent Plaintiffs assert violations of the Religious Freedom Restoration Act with respect

to their claimed use of cannabis in the exercise of their religion, the motion is denied. With respect to all other

claims, including any claims under the Religious Freedom Restoration Act that relate to matters other than Plaintiffs’

exercise of their religion, the First Amended Complaint is dismissed.




Mooney says he is a “Spiritual Leader” and medicine man, and the founder of Oklevueha, a church that he says was

established “to espouse the virtues of, and to consume entheogens,” psychoactive substances used in religious,

shamanic, or spiritual contexts. See First Amended Complaint, Introduction and ¶ 2 (March 22, 2010). Plaintiffs seek

a determination that... (See Actual Case for Remainder)


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