Desperate Times Call for Desperate (Marijuana) Lawsuits

Gustave Courbet's, The Desperate
Gustave Courbet’s, The Desperate

Two lawsuits were filed against the State of Colorado this week by two sets of plaintiffs in a twin effort to end Colorado’s recreational marijuana program. The first set of plaintiffs, Hope and Michael P. Reilly, and the second set, New Vision Hotels Two, LLC (both of which are joined by co-plaintiff, Colorado-based Safe Streets Alliance), are the latest parties to file federal lawsuits attempting to enjoin the State of Colorado and a number of its marijuana businesses from violating federal drug laws. Colorado is no stranger to federal litigation involving its recreational cannabis program, with two of its neighboring states having recently filed suit with the United States Supreme Court to attempt to eviscerate Colorado’s recreational marijuana regime. The suits filed this week name as defendants Colorado’s governor, state and local officials, and two Colorado marijuana businesses.

The plaintiffs in both suits advance a number of novel and familiar legal claims, each of which have approximately the same likelihood of success —zero.

The complaints have a number of immediately apparent deficiencies. Most obviously, it is questionable whether these particular plaintiffs can even bring the lawsuits at all. To proceed with their lawsuits, plaintiffs must demonstrate that they have what the law calls “standing,” namely that they’ve been harmed by or have a legally recognizable connection to defendants’ actions. To demonstrate this, plaintiffs must show that they have suffered an imminent and particularized injury, that the defendants’ actions have caused that injury, and that the Court’s action will redress that injury.

Neither set of plaintiffs will likely make it past the first factor—demonstrating an imminent and particularized injury. For example, the Reilly plaintiffs claim that they have been injured because a cultivation facility is currently being built adjacent to their properties. Specifically, they claim that one of the cultivation facility defendants has “marred the mountain views” from their property, “making it less suitable for horseback riding,” and that the facility has caused them and their children to be “reminded of the racketeering enterprise next door every time they look to the West.” The Reilly plaintiffs further allege that this cultivation facility will cause “undesirable visitors” and increased criminal activity as well as “pungent, foul odors” that will purportedly depress their property’s value.

The kicker is that the cultivation facility at issue hasn’t even been built yet. In turn, it is unclear how that facility will make the Reilly’s property less suitable for horseback riding. Moreover, given the significant advances in carbon filtration used by most cannabis cultivation operations, we are skeptical that tourists would even know the facility was growing the allegedly “highly odorous” and “offensive” products had the plaintiffs not so publicly pointed it out. Not to mention that odor is highly subjective anyway. Furthermore, the fact that plaintiffs’ view of the mountains is supposedly obscured by a grow facility does not, by itself, give rise to a cause of action unless plaintiffs acquired some sort of easement on the land that allowed them an unobstructed and “unmarred” view of the mountains which has not been alleged in the complaint. Would plaintiffs have brought this lawsuit had it been a tavern allegedly spoiling their view?

Finally, for both sets of plaintiffs, their sentiments of dissatisfaction and hurt feelings from being reminded of something that is federally illegal is hardly a legitimate basis for claiming injury. There has to be more than just displeasure for plaintiffs to demonstrate their right to sue Colorado and the marijuana businesses in question. Displeasure virtually never equals legal damages — if it did, restaurants would be getting sued all the time for messing up on crème bruûlée. Plaintiffs in these cases will need to show something like a drop in visitors caused by the nearby marijuana businesses, which in turn caused plaintiffs to suffer a demonstrable loss of business. As far as we can tell, there is nothing in either lawsuit that establishes standing on behalf of any of the plaintiffs, and the Colorado Attorney General’s Office (we hope) will easily draft a slam-dunk motion to dismiss which we expect the Court to grant.

Perplexingly, both sets of plaintiffs plead a cause of action for nuisance under the Racketeer and Corrupt Organizations Act (RICO), which is most often used to prosecute large-scale criminal enterprises, such as the Gambino Family. It is not often used to seek private damages against elected government officials. Nonetheless, the RICO Act contains its own standing requirements that, for reasons set forth above, plaintiffs are also unlikely to satisfy. On top of all this, RICO cases have a notoriously high failure rate.

We have previously written about NIMBYs and we view this case as NIMBYs on steroids. Cannabis can make emotions run high, but wasting state taxpayer dollars to have to defend these types of lawsuits is a true injustice to the state of Colorado. The voters have spoken. Democracy should prevail.

What are your thoughts?