Court: Rohrabacher-Blumenauer Doesn’t Protect Grows on Federal Land

Published on April 5, 2018 · Last updated July 28, 2020
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A US appeals court says a law that bans the Justice Department from prosecuting some medical marijuana patients and dispensaries—known originally as the Rohrabacher-Blumenauer amendment, and now as Rohrabacher-Blumenauer—does not apply to cannabis operations on federal land.

Today's ruling makes it clear that Rohrabacher-Blumenauer applies only in cases where the cannabis in question is legal under state law.

The 9th US Circuit Court of Appeals on Thursday rejected an appeal by two men charged in federal court with growing cannabis in Northern California on property controlled by the US Bureau of Land Management (BLM).

The case involves two men, Russell Gilmore and Richard Hemsley, who were found to be growing 118 cannabis plants outdoors in rural El Dorado County, California, in Sept. 2012. El Dorado County sits between Sacramento and Lake Tahoe. Local hunters discovered the grow, and tipped local law enforcement officials. A parcel map confirmed that the plants were located on federal land administered by the BLM.

A third man, John Mahan, told authorities that he rented the property with the intent to grow cannabis. Mahan hired Hemsley as a cannabis grower, and Gilmore as a security guard. In later court documents they would claim that they didn’t know they were on federal land, but rather their presence there was “inadvertent.”

Hung Jury

Federal prosecutors charged all three men with conspiracy to manufacture marijuana plants. Mahan pleaded guilty in Nov. 2015, but Gilmore and Hemsley opted to go to trial. In April 2016, a jury in federal court failed to reach a unanimous verdict, so the district court declared a mistrial.

“Nothing in California law purports to authorize the cultivation of marijuana on federal land,” the court ruled.

A few months later, in Aug. 2016, the 9th US Circuit Court of Appeals handed down its decision in the McIntosh case. In that case, the court ruled that Rohrabacher-Blumenauer (then known as Rohrabacher-Farr) prevented the Department of Justice from spending money to prosecute medical cannabis defendants who follow state law.

Today’s ruling limits the scope of McIntosh, making it clear that Rohrabacher-Blumenauer applies only in cases where the cannabis in question is legal under state law. “Nothing in California law purports to authorize the cultivation of marijuana on federal land,” the court ruled today. “Even if state law tolerated marijuana cultivation on public land, federal law forbids such use.”

The language in the Rohrabacher-Blumenauer amendment prevents Justice Department funds from being used “to prevent any [legal medical marijuana state] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Enforcing cannabis prohibition on federal land, the 9th Circuit ruled today, “does not ‘prevent’ California from otherwise implementing its medical marijuana regime.”

Watch Yourself on Federal Land

Today’s ruling wasn’t entirely surprising. It’s always been widely assumed that state cannabis laws do not protect a person from federal cannabis laws while on federal property. That’s why it’s not a good idea to take any cannabis products into a National Park or a National Forest.

The ruling could have an effect on subsequent cases, though, if federal authorities were to bring charges against a person who possessed cannabis while on federal land–but did not realize they were on federal land. “It is…irrelevant whether [the defendants] knew the garden was on federal land,” the court ruled today. “The government is not required to prove such knowledge to convict.”

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Bruce Barcott
Bruce Barcott
Leafly Senior Editor Bruce Barcott oversees news, investigations, and feature projects. He is a Guggenheim Fellow and author of Weed the People: The Future of Legal Marijuana in America.
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