Case 1:15-cv-00462-WYD-NYW Document 51 Filed 02/26/16 USDC Colorado Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 15-cv-00462-WYD-NYW
JUSTIN E. SMITH,
CHAD DAY,
SHAYNE HEAP,
RONALD B. BRUCE,
CASEY SHERIDAN,
FREDERICK D. MCKEE,
SCOTT DECOSTE,
JOHN D. JENSON,
MARK L. OVERMAN,
BURTON PIANALTO,
CHARLES F. MOSER, and
PAUL B. SCHAUB,
Plaintiffs,
v.
JOHN W. HICKENLOOPER, Governor of the State of Colorado,
Defendant.

ORDER ON MOTION TO DISMISS

I.

INTRODUCTION
This matter is before the Court on Defendant John Hickenlooper, Jr.s

[Hickenlooper] Motion to Dismiss Plaintiffs Complaint Under Rules 12(b)(1) and

12(b)(6) filed on May 1, 2015. A response in opposition to the motion was filed on June
26, 2015, and a reply was filed on July 13, 2015. Thus, the motion is fully briefed. Also,
on January 27, 2016, the Governors Notice of Supplemental Authority Supporting His
Motion to Dismiss was filed.

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II.

BACKGROUND
Colorados voters adopted Amendment 64 in 2012, adding Article XVIII, Section

16 to the Colorado Constitution. This amendment legalized the use, possession, sale,
distribution, and cultivation of marijuana by persons over the age of twenty-one.
Plaintiffs, who are law enforcement officials from Colorado, Kansas, and Nebraska,
argue that three provisions of Amendment 64section 3 (governing the personal use of
recreational marijuana), section 4 (governing recreational marijuana facilities), and
section 5 (providing for the regulation of recreational marijuana)are invalid because
they conflict with federal law and international treaties and therefore violate the
Supremacy Clause. (See Compl., ECF No. 1, 65-73, 106.) Plaintiffs also allege that
the pertinent provisions of Amendment 64 are preempted by the Controlled Substances
Act [the CSA], 21 U.S.C. 801 et seq., and American foreign policy. Plaintiffs seek a
declaration that Sections 16(3)-(5) of Amendment 64 are unconstitutional and an
injunction barring their continued implementation and enforcement.
Plaintiffs theory is that through the CSA and various International Conventions
and treaties1, Bilateral Initiatives, and Trade Agreements [herein collectively referred to
as International Conventions], Congress intended to prevent the states from adopting
marijuana-related laws that do not adhere to a policy of marijuana prohibition. Arguing
that Congress has preeminent federal authority and responsibility over controlled
substances, Plaintiffs allege that permitting states to regulate marijuana, rather than

Plaintiffs argue that Amendment 64 contravenes the Single Convention on Narcotic Drugs of
1961, the Convention on Psychotropic Substances of 1971, and the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. (Compl., 41.)

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independently criminalizing it, will create a patchwork that interferes with the federal
drug laws. (Compl., 3, 4.) Plaintiffs fall into three groups:
Sheriffs from Colorado (Defendants Smith, Day, Heap, Bruce, Sheridan, and
McKee) who appear only in their individual capacities;
Sheriffs from counties in other states (Nebraska and Kansas) (Defendants
Hayward, Jensen, Overman, and Pianalto), who appear in their individual and
official capacities; and
County Attorneys Moser and Schaub, both of whom sue the Governor in their
individual and official capacities.
(Id., 819.)
Defendant Hickenlooper asserts that this case should be dismissed for three
reasons. First, he argues that the Plaintiffs lack standing. Second, he asserts that
Plaintiffs fail to state a cause of action because the CSA, the Supremacy Clause, and
the International Conventions neither include nor create a right of private enforcement.
Finally, Hickenlooper argues that Plaintiffs claims fail as a matter of law on the merits,
as Amendment 64 is not preempted by the CSA or U.S. Foreign Policy conventions or
agreements. I find for the reasons set forth below that Hickenloopers motion to dismiss
should be granted and this case dismissed.
III.

ANALYSIS
A.

Standard of Review

Hickenlooper seeks to dismiss the case pursuant to Fed. R. Civ. P. 12(b)(1) and
(6). Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter
jurisdiction. A facial attack on the complaints allegations as to subject matter
jurisdiction, as in this case, questions the sufficiency of the complaint. Holt v. United

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States, 46 F.3d 1000, 1002 (10th Cir. 1995). In reviewing a facial attack, the Court
must accept the allegations in the complaint as true. Id.
As to a motion to dismiss filed under that Rule 12(b)(6), the court must accept all
well-pleaded facts as true and view them in the light most favorable to the plaintiff.
Jordan-Arapahoe, LLP v. Bd. of County Commrs of Cnty. of Arapahoe, 633 F.3d 1022,
1025 (10th Cir. 2011). Plaintiff must allege that enough factual matter, taken as true,
[makes] his claim for relief ... plausible on its face. Id. (quotation and internal quotation
marks omitted). A claim has facial plausibility when the [pleaded] factual content [ ]
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. (quotation omitted).
B.

The Merits of the Motion

I first address Hickenloopers argument that Plaintiffs have no cause of action

under the CSA, the International Conventions, or the Supremacy Clause, and find it is
dispositive. I note that private rights of action to enforce federal law must be created by
Congress. Alexander v. Sandoval, 532 U.S. 278, 286 (2001). The judicial task is to
interpret the statute Congress has passed to determine whether it displays an intent to
create not just a private right but also a private remedy. Id. This is determined by
statutory intent. Id. Without such intent, a cause of action does not exist and courts
may not create one, no matter how desirable that might be as a policy matter, or how
compatible with the statute. Id. at 286-87.
The Supreme Court has held that [t]he question whether Congress ... intended
to create a private right of action [is] definitively answered in the negative where a
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statute by its terms grants no private rights to any identifiable class. Gonzaga Univ. v.
John Doe, 536 U.S. 273, 283-84 (2002) (quoting Touche Ross & Co. v. Redington, 442
U.S. 560, 575 (1979)). For a statute to create such private rights, its text must be
phrased in terms of the persons benefited. Id. at 284 (quotation omitted). [E]ven
where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under
an implied right of action must still show that the statute manifests an intent to create
not just a private right but also a private remedy. Id. (emphasis in original) (quotation
omitted). Absent Congressional intent to create both a right and a remedy in favor of a
plaintiff, a cause of action does not exist. Cuba Soil and Water Conservation Dist. v.
Lewis, 527 F.3d 1061, 1064 (10th Cir. 2008).
Turning to the CSA, I agree with Hickenlooper that federal courts have uniformly
held that the CSA does not create a private right of action. This was noted by Judge
Blackburn in a recent decision in Safe Streets Alliance, et al. v. Hickenlooper, et al.,
Civil Action No. 15-cv-349-REB-CBS (D. Colo. January 19, 2016) (ECF No. 118 at 8-9)
[hereinafter the January 19, 2016 Order] (citing cases); see also Shmatko v. Ariz. CVS
Stores LLC, No. 14-CV-01076, 2014 WL 3809092, at *2 (D. Ariz. Aug. 1, 2014)
(dismissing case for lack of subject matter jurisdiction because [f]ederal law
unequivocally holds. . . that the . . . CSA do[es] not create private rights of action that
can give rise to a federal question.)
As Judge Blackburn stated in support of his ruling in the Safe Streets case,
[t]here is a strong presumption that criminal statutes, enacted for the protection of the
general public, do not create private rights of action. (January 19, 2016 Order at 8.)
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Moreover, as in the Safe Streets case, Plaintiffs here point to nothing in the text of the
CSA that includes the type of rights-creating language which explicitly confer[s] a right
directly on a class of persons that includes the plaintiff or identif[ies] the class for
whose especial benefit the statute was enacted. (Id. at 8) (quoting Love v. Delta Air
Lines, 310 F.3d 1347, 1352 (11th Cir. 2002)). Instead, according to its plain terms,
[t]he [CSA] is a statute enforceable only by the Attorney General and, by delegation,
the Department of Justice. Schneller v. Crozer Chester Med. Ctr., 387 F. Appx 289,
293 (3d Cir. 2010) (citing 21 U.S.C. 871(a)). I adopt the well reasoned analysis of
Judge Blackburn in the Safe Streets Alliance case and find that the CSA does not
create a private right of action. Moreover, Plaintiffs have not shown that the statute
provides a private remedy.
I also find that Plaintiffs have not shown that a private right of action or remedy
exists under the International Conventions they rely upon. See Medellin v. Texas, 552
U.S. 491, 506 n.3 (2008) ([T]he background presumption is that [i]nternational
agreements, even those directly benefitting private persons, generally do not . . .
provide for a private cause of action in domestic courts. (citation omitted)).
Additionally, these conventions, treaties, and agreements impose no duties on Colorado
and confer no rights on Plaintiffs. Instead, the United States is the signatory, and the
United States Attorney Generals Office has stated that the federal governments
permissive approach to state regulation of marijuana (as outlined in the Cole Memo)
does not violate the United States treaty obligations. Conflicts Between State and
Federal Marijuana Laws: Hearing Before S. Comm. On the Judiciary, 113th Cong.
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(Answers by James M. Cole to Questions for the Record at 4) (Sept. 10, 2013),
available at http://tinyurl.com/povoazz.
Moreover, Plaintiffs may not use the Supremacy Clause to graft a private right of
action for preemption onto the CSA or the International Conventions. This was made
clear by the recent decision of the Supreme Court in Armstrong v. Exceptional Child
Ctr., ___ U.S. ___, 135 S. Ct. 1378 (2015). There, the Supreme Court made clear that
the Supremacy Clause was a rule of decision, instruct[ing] courts what to do when
state and federal laws clash. Id. at 1383. It is not the source of any federal rights,
and does not create a cause of action. Id. In so holding, the Court noted that the
Supremacy Clause must be read in the context of the Constitution as a whole, and that
Article I vests Congress with broad discretion over the manner of implementing its
enumerated powers, giving it authority to make all Laws which shall be necessary and
proper for carrying [them] into Execution. Id. at 1383 (quoting Art. I, 8.) It then
stated:
If the Supremacy Clause includes a private right of action, then the
Constitution requires Congress to permit the enforcement of its laws by
private actors, significantly curtailing its ability to guide the implementation of
federal law. It would be strange indeed to give a clause that makes federal
law supreme a reading that limits Congresss power to enforce that law, by
imposing mandatory private enforcementa limitation unheard-of with regard
to state legislatures.
Id. at 1384 (emphasis in original).
The Supreme Court in Armstrong rejected the argument that its preemption
jurisprudencespecifically, the fact that we have regularly considered whether to enjoin
the enforcement of state laws that are alleged to violate federal law, demonstrated that
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the Supremacy Clause creates a cause of action for its violation. 135 S. Ct. at 1384. It
stated that the ability to sue to enjoin unconstitutional actions by state and federal
officers is a judge-made equitable remedy, and that it does not rest[] upon an implied
right of action contained in the Supremacy Clause. Id. Thus, to the extent Plaintiffs
imply that they may bring a cause of action for preemption directly under the Supremacy
Clause, this argument is without merit.
Plaintiffs argue, however, that the Armstrong decision permits them to proceed in
equity to enjoin enforcement of Amendment 64. While Armstrong did find that there
might be a right to sue in equity to enjoin unconstitutional actions, as noted above, I find
that there is no such right in this case. The Supreme Court in Armstrong made clear
that [t]he power of federal courts of equity to enjoin unlawful executive action is subject
to express and implied statutory limitations. 135 S. Ct. at 1385. Thus, [c]ourts of
equity can no more disregard statutory and constitutional requirements and provisions
than can courts of law. Id. (quotation and internal quotation marks omitted).
In Armstrong, the Court found that the Medicaid Act at issue in the case
implicitly preclude[d] private enforcement of 30A, and that the respondents could not,
by invoking [the Courts] equitable powers, circumvent Congresss exclusion of private
enforcement. 135 S. Ct. at 1385. This holding was based on two aspects of the
Medicaid Act which the Supreme Court found established Congress intent to
foreclose equitable relief. Id. (quotation omitted). First, the sole remedy Congress
provided for a States failure to comply with Medicaids requirements was the
withholding of Medicaid funds by the Secretary of Health and Human Services. Id. The
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Court held that the express provision of one method of enforcing a substantive rule
suggests that Congress intended to preclude others. Id. (quoting Alexander, 532 U.S.
at 290).
Second, the Court found that while [t]he provision for the Secretarys
enforcement by withholding funds might not, by itself, preclude the availability of
equitable relief, it did so when combined with the judicially unadministrable nature of
the statutes text. Armstrong, 135 S. Ct. at 1385 (emphasis in original). It stated:
It is difficult to imagine a requirement broader and less specific than 30(A)s
mandate that state plans provide for payments that are consistent with
efficiency, economy, and quality of care, all the while safeguard[ing] against
unnecessary utilization of ... care and services. Explicitly conferring
enforcement of this judgment-laden standard upon the Secretary alone
establishes, we think, that Congress wanted to make the agency remedy
that it provided exclusive, thereby achieving the expertise, uniformity,
widespread consultation, and resulting administrative guidance that can
accompany agency decisionmaking, and avoiding the comparative risk of
inconsistent interpretations and misincentives that can arise out of an
occasional inappropriate application of the statute in a private action. . . .
Id. (quotation omitted). The Supreme Court concluded that [t]he sheer complexity
associated with enforcing 30(A), coupled with the express provision of an
administrative remedy, . . . shows that the Medicaid Act precludes private enforcement
of 30(A) in the courts. Id.
I find that the same result applies here, Plaintiffs arguments notwithstanding.
First, there is nothing in the CSA which expressly permits private enforcement of the
Acts provisions. I also find, as in Armstrong, that the CSA implicitly precludes private
enforcement, and that Plaintiffs may not, by invoking the courts equitable powers,
circumvent Congresss exclusion of private enforcement. 135 S. Ct. at 1385. In that
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regard, I note that enforcement of the Act is expressly delegated to the Attorney
General of the United States, with criminal liability being the principal enforcement
mechanism. See, e.g., 21 U.S.C. 841-51, 877; Schneller, 387 F. Appx at 293.2
Only in limited circumstances does the CSA grant other parties enforcement
powersand these powers never apply to private litigants. 21 U.S.C. 878(a)
(empowering the Attorney General to designate[ ] State and local law enforcement
officers to enforce the CSA); 882(c) (granting States limited authority to enforce the
CSA against online pharmacies, but expressly noting that [n]o private right of action is
created under this subsection). Thus, like the Medicaid Act, the CSA is designed to be
implemented through a system of centralized enforcement. The express provision of
these methods of enforcing the CSA suggests that Congress intended to preclude
others. Armstrong, 135 S. Ct. at 1385 (quotation omitted).3
When combined with the judicially unadministrable nature of the CSAs text, I
find that the equitable relief Plaintiffs seek is precluded. I agree on that issue with
Judge Blackburns analysis of the issue in the Safe Streets case, wherein he noted:
There certainly can be no more judgment-laden standard than that which
confers almost complete discretion on the Attorney General to determine
2

The Attorney General may also enforce the CSA through civil forfeiture proceedings (id., 881)
or administrative proceedings. (Id. 875.)
3

I note that the Department of Justice has implemented a policy of non-enforcement through the
Cole Memo. Congress, meanwhile, has endorsed this policy of non-enforcement to allow states to
implement medical marijuana regulations that conflict with the CSAeven the commercial medical
marijuana regime that Colorado has implemented. Consolidated and Further Continuing Appropriations
Act of 2015, Pub. L. No. 113-235, tit. V, 538, 128 Stat. 2130 (2014) (None of the funds made available
in this Act to the Department of Justice may be used . . . to prevent . . . States from implementing their
own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.). This
case, if successful, would directly undermine current federal enforcement policy as articulated in the Cole
memo.

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whether to assert the supremacy of federal law to challenge arguably

conflicting state marijuana laws. . . . The Department of Justice has made a
conscious, reasoned decision to allow the states which have enacted laws
permitting the cultivation and sale of medical and recreational marijuana to
develop strong and effective regulatory and enforcement schemes. See
James M. Cole, Guidance Regarding Marijuana Enforcement, United
States Department of Justice, Office of the Deputy Attorney General (August
29, 2013). . . . Allowing private litigants to interfere with that discretionary
decision would create precisely the type of risk of inconsistent interpretations
and misincentives which strongly counsel against recognizing an implicit
right to a judicially created equitable remedy. See Armstrong, 135 S.Ct. at
1385.
(January 19, 2016 Order at 10-11) (quotation and internal footnote omitted). I adopt his
well reasoned analysis herein.4
I find that the same analysis applies to the International Conventions. None of them
creates a private right of action, and none indicates that Congress intended private litigants
to enforce them by way of the courts equitable powers. Moreover, Plaintiffs have not
shown how these Conventions would be judicially administrable. Accordingly, I find that
Plaintiffs have no cause of action under the Intentional Conventions to preempt Colorado
law.
Based on the foregoing, I find that both the first and second claims for relief fail to
state viable claims for relief, and that Defendant Hickenloopers motion to dismiss should

Plaintiffs argument that courts routinely interpret and enforce the CSA and that the CSA permits
injunctions as a remedy for violations of the statute misses the mark. The issue here relates to the
method of enforcement of the CSA. Courts do not make charging decisions under the CSA. Like the
Medicaid Act at issue in Armstrong, the CSA imposes a judgment-laden standard upon the Attorney
General regarding the CSAs enforcement that achieves expertise and uniformity and avoids the
comparative risk of inconsistent interpretations and resulting administrative guidance that can arise out of
an occasional interpretation of the statute in a private action. Armstrong, 135 S. Ct. at 1385 (quoting
Gonzaga Univ., 536 U.S. at 292). As in the Gonzaga University case, [i]t is implausible to presume that
the same Congress [that added the centralized review provision for enforcement in most instances by the
Attorney General] intended private suits to be brought before thousands of federal and state court
judges, which could only result in the sort of multiple interpretations the Act explicitly sought to enjoin.
536 U.S. at 290.

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be granted. Since I find that Plaintiffs have no right of action, there is no need to address
Hickenloopers remaining arguments in his motion to dismiss as to these claims.
IV.

CONCLUSION
In conclusion, it is
ORDERED that Defendant John Hickenlooper, Jr.s Motion to Dismiss Plaintiffs

Complaint Under Rules 12(b)(1) and 12(b)(6) filed on May 1, 2015 (ECF No. 23) is
GRANTED, and Plaintiffs claims in this case are DISMISSED WITH PREJUDICE.
Dated: February 26, 2016
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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