Oklevueha Native American Church of Hawaii, Inc. et al v. Holder et al

Filing 85

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT 63 . Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/31/2012. ~ Order follows hearing held 12/10/2012. Minutes: doc no. 84 ~ (a fc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OKLEVUEHA NATIVE AMERICAN
CHURCH OF HAWAII, INC.;
MICHAEL REX “RAGING BEAR”
MOONEY

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
ERIC H. HOLDER, JR., U.S.
)
Attorney General; MICHELE
)
LEONHART, Acting
)
Administrator, U.S. Drug
)
Enforcement Administration;
)
FLORENCE T. NAKAKUNI, U.S.
Attorney for the District of )
)
Hawaii,
)
)
Defendants.
_____________________________ )

CIVIL NO. 09-00336 SOM/BMK
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS FIRST AMENDED
COMPLAINT

ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS FIRST AMENDED COMPLAINT
I.

INTRODUCTION.
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.
motion only in part.

This court grants that

II.

FACTUAL BACKGROUND.
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).

2

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.

part and denied in part.

That motion is granted in

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.
III.

BACKGROUND.
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

3

they are entitled to grow, possess, use, and distribute cannabis
free from federal penalties, including criminal prosecutions and
civil sanctions and forfeitures.
Plaintiffs allege that Oklevueha has 250 members in
Hawaii and is one of 100 branches of the Native American Church.
See id. ¶¶ 19, 41.

Plaintiffs further allege that the Native

American Church has an estimated 500,000 members in more than 24
states.

Id. ¶ 19.

The First Amended Complaint alleges that each

branch of the Church is independent and is “responsible for its
own Church management, ceremonies, and Medicine People.”

Id.

¶ 22.
Plaintiffs allege that all 250 members of Oklevueha use
cannabis in religious ceremonies, and that use of cannabis is “an
essential and necessary component of [their] religion.”
¶¶ 41, 48.

Id.

Plaintiffs also allege that Mooney “is of Seminole

Native American ancestry,” and that “certain North American
Indian Tribes” have used cannabis for religious and therapeutic
purposes.

Id. ¶¶ 10, 23.

Plaintiffs do not, however, allege

that Seminoles traditionally use cannabis in religious ceremonies
or that any of the 250 members of Oklevueha follows the
traditional Seminole religion.
Plaintiffs say that peyote is a significant sacrament
for them, noting that Native Americans traditionally consume
cannabis, especially when their primary sacrament, peyote, is in

4

short supply.

Id. ¶¶ 23-25.

According to Plaintiffs, members of

Oklevueha consume numerous other substances, such as “Ayahuasca .
. . , Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,
Tsi-Ahga, and many others.”

Id. ¶ 25.

Plaintiffs describe cannabis as being used in religious
ceremonies to enhance spiritual awareness and to “direct
experience of the divine.”

Id. ¶ 26.

Mooney says that he uses

the cannabis sacrament daily and that he and other members of
Oklevueha use cannabis in twice-monthly “sweats” held during the
new moon and full moon.

See id. ¶ 37.

The only further detail

concerning the “sweats” is that they are held at various “private
locations on Oahu.”

Plaintiffs say they “acquire their cannabis

by cultivating it or acquiring it from other churches, caregivers
or other state-sanctioned methods.”

Id. ¶¶ 37, 40.

Mooney says that he “possesses a State of Hawaii
Department of Public Safety Narcotics Enforcement Division
Medical Marijuana Registry Patient Identification Certificate”
that “allows him to acquire, possess, cultivate and consume
cannabis without State criminal penalty in the State of Hawaii.”
Id. ¶ 39.

It appears from these allegations that Mooney obtained

a certificate under Hawaii’s Medical Use of Marijuana laws, which
permit use of cannabis by a person certified as having a
“debilitating medical condition” or by a person acting as the
“primary caregiver” for such a person.

5

While Mooney separately

alleges that he is a medicine man, his pleadings contain no
factual allegations linking such a status to anything required by
Hawaii law.
Plaintiffs say they fear that their cultivation,
consumption, possession, and distribution of cannabis will lead
to their being prosecuted.

Id. ¶¶ 52-53.

Plaintiffs also allege that Mooney should have received
approximately one pound of cannabis, valued at approximately
$7,000, that was seized at an unidentified time by federal drug
enforcement authorities in Hawaii before Federal Express could
deliver it to Mooney.
IV.

Id. ¶ 49.

STANDARD.
The applicable legal standard was set forth in this

court’s previous order dismissing the original Complaint.
ECF No. 25; 2010 WL 649753, at *2 (D. Haw. Feb. 23, 2010).

See
That

standard is incorporated herein by reference.
V.

THE PREENFORCEMENT CLAIMS.
A.

Count 1--Religious Freedom Restoration Act.

In 1990, the Supreme Court held that the Free Exercise
Clause of the First Amendment does not prohibit the Government
from burdening religious practices through generally applicable
laws.

See Employment Div., Dept. of Human Res. of Or. v. Smith,

494 U.S. 872 (1990).

Congress responded by enacting the

Religious Freedom Restoration Act of 1993 (“RFRA”), which
6

“prohibits the Federal Government from substantially burdening a
person’s exercise of religion, unless the Government
‘demonstrates that application of the burden to the person’
represents the least restrictive means of advancing a compelling
interest.”

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 423-24 (2006) (quoting 42 U.S.C. § 2000bb1(b)).

Under RFRA unless the Government satisfies a “compelling

interest test,” “the Federal Government may not, as a statutory
matter, substantially burden a person’s exercise of religion,
‘even if the burden results from a rule of general
applicability.’”

Id. (quoting 42 U.S.C. § 2000bb-1(a)).

That

is, the Government must “‘demonstrat[e] that application of the
burden to the person--(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.’”

Id. (quoting

42 U.S.C. § 2000bb-1(b)).
The Ninth Circuit has held that, “[t]o establish a
prima facie RFRA claim, a plaintiff must present evidence
sufficient to allow a trier of fact rationally to find” that the
activities the plaintiff claims are burdened by Government action
are an “exercise of religion” and that the Government action
“substantially burdens” the plaintiff’s exercise of religion.
Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1068

7

(9th Cir. 2008) (en banc).

The en banc court described a

“substantial burden” as follows:
Under RFRA, a “substantial burden” is imposed
only when individuals are forced to choose
between following the tenets of their
religion and receiving a governmental benefit
. . . or coerced to act contrary to their
religious beliefs by the threat of civil or
criminal sanctions . . . . Any burden
imposed on the exercise of religion short of
that . . . is not a “substantial burden”
within the meaning of RFRA, and does not
require the application of the compelling
interest test . . . .
Id. at 1069-70.
The Controlled Substances Act, 21 U.S.C. §§ 801-971,
classifies marijuana (“cannabis,” to Plaintiffs) as a controlled
substance and makes it unlawful to manufacture, distribute,
dispense, or possess that substance except as otherwise provided
in the statute.
Cir. 2007).

See Raich v. Gonzales, 500 F.3d 850, 854-55 (9th

Plaintiffs appear to be seeking a declaration that,

under RFRA, their use of cannabis cannot be restrained by the
Controlled Substances Act or other federal laws.
Defendants seek dismissal of the preenforcement claim
under RFRA, arguing that Plaintiffs seek an injunction with
respect to usage not associated with their religion and that the
First Amended Complaint fails to allege any “substantial burden.”
The court agrees that, to the extent the First Amended Complaint
seeks relief under RFRA for matters unrelated to the exercise of
Plaintiffs’ religion, that claim is not viable.
8

See Stomans,

Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (stating
that a court abuses its discretion when it issues an overbroad
injunction and that “[i]njunctive relief must be tailored to
remedy the specific harm alleged” (quotation, alteration, and
citation omitted)).

However, Plaintiffs also seek relief under

RFRA with respect to alleged religious use, and Defendants’
motion is denied as to that portion of the RFRA claim.
Turning first to the portion of the RFRA claim that is
not tied to alleged religious use of cannabis, this court notes
that the prayer for relief seeks an injunction prohibiting
Defendants not only from arresting or prosecuting Plaintiffs in
connection with their religious use of cannabis, but also in
connection with Plaintiffs’ “possession of therapeutic cannabis
for individual use in compliance with State of Hawaii Revised
Statutes,” Plaintiffs’ “ability to obtain cannabis from any other
legal source in compliance with State of Hawaii Revised
Statutes,” Plaintiffs’ “ability . . . to cultivate and distribute
cannabis to any person or entity in compliance with State of
Hawaii Revised Statutes,” and Plaintiffs’ “cultivation of
cannabis for therapeutic . . . needs.”

This prayer for relief

does, as Defendants contend, appear to encompass nonreligious
matters.
For example, Plaintiffs’ reference to “State of Hawaii
Revised Statutes” appears to relate to sections 329-121 to 329-

9

128, which pertain to the medical use of cannabis.

This is in

keeping with Mooney’s assertion that he “possesses a State of
Hawaii Department of Public Safety Narcotics Enforcement Division
Medical Marijuana Registry Patient Identification Certificate”
that “allows him to acquire, possess, cultivate and consume
cannabis without State criminal penalty in the State of Hawaii.”
See Complaint ¶ 39.
While Mooney alleges that he is a spiritual leader,
which he says is commonly referred to as a medicine man, see id.
¶ 2, no factual allegations in the First Amended Complaint even
hint that any medical use of cannabis falling under state law
relates to the exercise of Mooney’s religion.

Nor is there any

factual allegation about any Oklevueha’s member’s medical use of
cannabis at all, whether in connection with religion or not.
Hawaii law on the medical use of cannabis does not relate to or
rely on any religion.

Thus, without more, the court sees no

reason to tie medical use to religion.

Just as a doctor who used

cannabis himself or herself would not automatically have a RFRA
claim, a medicine man needs to explain how any medical use of
cannabis pursuant to state law relates to RFRA.
allegations provide that explanation.

No factual

Therefore, to the extent

any part of the RFRA claim seeks an injunction in reliance on
sections 329-121 to 329-128 of Hawaii Revised Statutes or any

10

other provision unrelated to religion, that part of the RFRA
claim is dismissed as not stating a claim.
To the extent the First Amended Complaint seeks an
injunction under RFRA concerning Plaintiffs’ alleged religious
use of cannabis, Plaintiffs allege a substantial burden on their
religion sufficient to survive the present motion to dismiss.
Mooney alleges that he “uses cannabis sacrament daily,” that
Oklevueha members use cannabis in twice-monthly “sweats,” that
Oklevueha’s 250 members in Hawaii “consume cannabis in their
religious ceremonies,” and that “receiving communion through
cannabis” is “an essential and necessary component of the
Plaintiffs’ religion.”
41, and 48.

See First Amended Complaint ¶¶ 37, 38,

Plaintiffs allege that they “consume, possess,

cultivate, and/or distribute cannabis as sanctioned and required
by their legitimate religion and sincere religious beliefs, and
as such, their free exercise of religion protected by RFRA.”
¶ 47.

Id.

Plaintiffs also say they “fear for their ability to

continue to cultivate, consume, possess and distribute cannabis
sacrament without the exceedingly significant burden placed upon
their lives by being branded criminals mandated for Federal
imprisonment and whose real property and assets can be seized
civilly with no applicable legal defense.”

Id. ¶ 52.

These allegations, coupled with Plaintiffs’ contention
that they are being “coerced to act contrary to their religious

11

beliefs by the threat of civil or criminal sanctions,”
sufficiently describe a “substantial burden” on what Plaintiffs
say is their “exercise of religion.”

See Navajo Nation, 535 F.3d

at 1069-70.
Plaintiffs’ alleged use of controlled substances other
than cannabis in their religion may go to whether Plaintiffs are
actually exercising a religion in using cannabis, or to the
actual extent of any burden on that religion, not to whether
Plaintiffs have adequately pled the existence of a substantial
burden.

That is, those issues may be relevant to liability and

damages, but not to whether the RFRA claim should be dismissed on
the present motion.
Finally, Defendants urge this court to dismiss the RFRA
claim on the ground that Plaintiffs have not sought the religious
exemption Defendants say is available under the Controlled
Substances Act.

The application or availability of an exemption

may come before this court in the context of an affirmative
defense, but it does not go to the issue of whether Plaintiffs’
allegations concerning a substantial burden on the exercise of

12

any religion are adequate.1

All that is required at this stage

of this case is a sufficient factual allegation of such a burden.
B.

Count 2--American Indian Religious Freedom Act.

Count 2 asserts a violation of the American Indian
Religious Freedom Act, 42 U.S.C. § 1996 (“AIRFA”).

That section

states:
On and after August 11, 1978, it shall be the
policy of the United States to protect and
preserve for American Indians their inherent
right of freedom to believe, express, and
exercise the traditional religions of the
American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to
access to sites, use and possession of sacred
objects, and the freedom to worship through
ceremonials and traditional rites.
As Plaintiffs conceded at the hearing, “AIRFA creates no
judicially enforceable individual rights.”

1

United States v.

Plaintiffs argued at the hearing on the present motion that
the Government would not grant such an exemption request. See,
e.g., Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1460 (D.C.
Cir. 1989) (“On July 29, 1988, the DEA issued its Final Order,
reaffirming its denial of Olsen’s exemption requests. That
order, which we set out in full as an Appendix to this opinion,
first disclaimed statutory authority to grant the exemption.
According to the DEA, Congress intended no religious-use
exemption from Controlled Substances Act proscriptions other than
the peyote-use permission granted the Native American Church.
Next, the DEA assumed, in order to rule completely, that it had
authority to consider Olsen’s exemption petition. It further
accepted, for purposes of its decision, that the Ethiopian Zion
Coptic Church is a bona fide religion with marijuana as its
sacrament. The agency then rejected Olsen’s free exercise claim,
concluding that the government has a compelling interest in the
regulation of controlled substances and that accommodation to
religious use of drugs is not required.”). Whether the
Government might grant such a request is not properly before this
court on the present motion to dismiss.
13

Mitchell, 502 F.3d 931, 954 (9th Cir. 2007).

Instead, “AIRFA is

simply a policy statement and does not create a cause of action.”
Henderson v. Terhune, 379 F.3d 709, 711 (9th Cir. 2004).
Accordingly, Count 2 is dismissed.
C.

Count 3--Equal Protection.

The Equal Protection Clause “commands that no State
shall ‘deny to any person within its jurisdiction the equal
protection of the laws,’ which is essentially a direction that
all persons similarly situated should be treated alike.”

City of

Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985)
(quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)).

In Count 3,

Plaintiffs assert that Defendants are violating their equal
protection rights by distinguishing between Plaintiffs’ use of
cannabis and other religious groups’ use of different drugs.
Plaintiffs call all such drugs, including cannabis, “entheogens.”
Defendants seek dismissal of Count 3, arguing that they have a
rational basis for treating the groups differently.
Count 3 is pled in a manner that makes it unclear
whether Plaintiffs are raising a facial challenge to the
constitutionality of the Controlled Substances Act or an “as
applied” challenge.

Count 3 notes that Defendants “are currently

prohibited” from arresting members of certain religions in
connection with their religious use of peyote and Ayahuasca.
First Amended Complaint ¶¶ 61, 62.

14

Plaintiffs say that threats

to arrest Mooney and Oklevueha members for cannabis use
constitute an equal protection violation in light of the
permitted consumption of other controlled substances.

If

Plaintiffs are challenging different treatment set forth by
statute, they are clearly bringing a facial challenge, and this
court looks at what Congress did.

Plaintiffs may instead be

challenging prosecutorial decisions as discriminatory (i.e.,
Plaintiffs may be bringing an “as applied” challenge), and
therefore suing officials involved with prosecutions.

However,

to the extent any prosecutorial decision is based on statutory
provisions, Plaintiffs’ real challenge must be to those
provisions.

Given the lack of factual assertions about any

Defendant’s personal decision to treat Oklevueha differently from
other groups claiming to use controlled substances for religious
purposes, this Court reads any “as applied” challenge to a
prosecutorial decision as grounded in statutory distinctions.

In

that context, whether a facial or an “as applied” challenge,
Count 3 does not survive the present motion to dismiss.
This court subjects a law challenged under the Equal
Protection Clause to one of three levels of scrutiny depending on
the classification involved.

Strict scrutiny applies to

classifications based on race, alienage, or national origin.
Such laws “will be sustained only if they are suitably tailored
to serve a compelling state interest.”

15

City of Cleburne, 473

U.S. at 440.

Intermediate scrutiny applies to classifications

based on gender or illegitimacy.

“A gender classification fails

unless it is substantially related to a sufficiently important
governmental interest.”

Id.

Classifications based on

illegitimacy will similarly survive an equal protection challenge
to “the extent they are substantially related to a legitimate
state interest.”

However, when no fundamental right or suspect

classification is involved, the “general rule is that legislation
is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest.”

Id.; Lockary v. Kayfetz, 917 F.2d

1150, 1155 (9th Cir. 1990) (“Unless a classification trammels
fundamental personal rights or implicates a suspect
classification, to meet constitutional challenge the law in
question needs only some rational relation to a legitimate state
interest.”).

Accord Heller v. Doe by Doe, 509 U.S. 312, 320

(1993) (“Such a classification cannot run afoul of the Equal
Protection Clause if there is a rational relationship between the
disparity of treatment and some legitimate governmental
purpose.”).
Under the rational basis test, a “classification must
be upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.”

16

Heller, 509 U.S. at 320

(quotations and citation omitted).

In language applicable to

facial challenges to statutes, the Court has held that the
Government “has no obligation to produce evidence to sustain the
rationality of a statutory classification.

A legislative choice

is not subject to courtroom factfinding and may be based on
rational speculation unsupported by evidence or empirical data.”
Id. (quotations, citation, and alterations omitted).

“A

classification does not fail rational-basis review because it is
not made with mathematical nicety or because in practice it
results in some inequality.”
alterations omitted).

Id. (quotations, citation, and

However, in attempting to satisfy the

rational basis standard, the Government “may not rely on a
classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational.”
City of Cleburne, 473 U.S. at 446; Lockary, 917 F.2d at 1155
(noting that the rational relation test will not sustain
malicious, irrational, or plainly arbitrary conduct).
Few cases discuss whether a rational basis test may be
applied on a motion to dismiss.

In Wroblewski v. City of

Washburn, 965 F.2d 452, 459-60 (7th Cir. 1992), the court stated,
A perplexing situation is presented when
the rational basis standard meets the
standard applied to a dismissal under Fed. R.
Civ. P. 12(b)(6). The rational basis
standard requires the government to win if
any set of facts reasonably may be conceived
to justify its classification; the Rule
12(b)(6) standard requires the plaintiff to
17

prevail if “relief could be granted under any
set of facts that could be proved consistent
with the allegations.” Hishon v. King &
Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229,
2232-33, 81 L. Ed.2d 59 (1984). The rational
basis standard, of course, cannot defeat the
plaintiff’s benefit of the broad Rule
12(b)(6) standard. The latter standard is
procedural, and simply allows the plaintiff
to progress beyond the pleadings and obtain
discovery, while the rational basis standard
is the substantive burden that the plaintiff
will ultimately have to meet to prevail on an
equal protection claim.
While we therefore must take as true all
of the complaint’s allegations and reasonable
inferences that follow, we apply the
resulting “facts” in light of the deferential
rational basis standard. To survive a motion
to dismiss for failure to state a claim, a
plaintiff must allege facts sufficient to
overcome the presumption of rationality that
applies to government classifications. We
have upheld dismissals under Rule 12(b)(6) of
challenges to such classifications, see,
e.g., Maguire, 957 F.2d at 378-79, and we do
so here.
Other courts have similarly held that a rational basis review may
be conducted at the pleading stage.

See, e.g., Hettinga v.

United States, 677 F.3d 471, 479 (D.C. Cir. 2012) (“Even at the
motion to dismiss stage, a plaintiff alleging an equal protection
violation must plead facts that establish that there is not any
reasonable conceivable state of facts that could provide a
rational basis for the classification.” (quotations and citation
omitted)).
The Ninth Circuit, in Fields v. Palmdale School
District, 427 F.3d 1197, 1209 (9th Cir. 2005), approved a
18

district court’s rational basis review on a motion to dismiss.
In that case, the court was reviewing a challenge to a school
district’s survey asking students to respond to questions on
sexual topics.

Some parents claimed that the survey infringed on

their right to control their children’s upbringing.

The Ninth

Circuit, finding no fundamental right to be in issue, applied the
rational basis test and affirmed the district court’s dismissal
of the federal claims for failure to state a claim.

This court

concludes that it similarly may conduct a rational basis review
on the present motion to dismiss to see whether the allegations
in the First Amended Complaint are sufficient to overcome the
presumption that a Government classification is rational.2
In United States v. Fry, 787 F.2d 903, 905 (4th Cir.
1986), the Fourth Circuit expressly upheld the different
treatment of marijuana as compared to alcohol and tobacco:
It is also contended that since alcohol
and tobacco are legal substances, the
prohibition of the production and
distribution of marijuana is so arbitrary as
to amount to a deprivation of equal
protection. Whatever the harmful effects of
alcohol and tobacco, however, Congress is not

2

In United States v. Carlson, 1992 WL 64772 (9th Cir. 1992),
an unpublished and uncitable decision, the Ninth Circuit rejected
the argument that the Controlled Substances Act when applied to
religious use of controlled substances requires strict scrutiny.
Instead, the court applied the rational basis test, determining
that no equal protection violation occurred because “Congress
could have rationally distinguished between peyote and marijuana
on the basis of overwhelming control problems with marijuana
distribution.”
19

required to attempt to eradicate all similar
evils. . . . It is for Congress to weigh the
conflicting considerations and determine the
necessity and appropriateness of prohibiting
trafficking in a dangerous substance, and it
may conclude that prohibition of the
trafficking in one such substance is
appropriate though trafficking in another is
left untouched.
Similarly, a district court in Kansas rejected an equal
protection challenge brought by members of the Rastafarian faith
to a Kansas law allowing religious use by members of the Native
American Church of peyote.

In a petition filed under 28 U.S.C.

§ 2254, the Rastafarians asserted that a prohibition on the use
of marijuana in their religion violated the Equal Protection
Clause.

The court, noting that the actual abuse and availability

of marijuana was greater than with peyote, held that the state
court “was not unreasonable” in determining that the Native
American Church and the Rastafarian religions were not similarly
situated.

See McBride v. Shawnee County, Kansas Court Servs., 71

F. Supp. 2d 1098, 1102-03 (D. Kan. 1999).
Plaintiffs’ position may ultimately win the day.

That

is, cannabis may one day cease to be a controlled substance.

But

it is not the court’s task in this case to evaluate arguments
against its present status as a controlled substance.

This court

looks instead to whether Defendants have a rational basis for
treating cannabis differently from some other substances.
noted by other courts in cases such as Fry and McBride, a

20

As

government may rationally treat a substance differently because
it may be more readily available and more easily abused than
other substances.

Congress could have rationally decided to

treat cannabis differently than other “entheogens” for precisely
that reason.

Different treatment in statutes and different

treatment in terms of arrests or seizures based on such statutes
therefore both pass muster under the Equal Protection Clause.
Count 3 is dismissed.
D.

Count 4--First Amendment.

In Count 4, Plaintiffs assert that Defendants are
violating their First Amendment right to the free exercise of
religion.
Defendants seek dismissal of Count 4, arguing that,
because the Controlled Substances Act is a neutral law of general
applicability, it does not violate the First Amendment even if it
impairs religious practices.

This argument is based on the 1990

case of Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872 (1990), which held that the Free
Exercise Clause of the First Amendment does not prohibit the
Government from burdening religious practices through generally
applicable laws.

Smith noted that “the right of free exercise

does not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability on the ground that

21

the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).”

Id. at 879 (quotations omitted).

As discussed above, Congress responded to Smith by
enacting RFRA, which “prohibits the Federal Government from
substantially burdening a person’s exercise of religion, unless
the Government ‘demonstrates that application of the burden to
the person’ represents the least restrictive means of advancing a
compelling interest.”

O Centro, 546 U.S. at 423-24 (2006)

(quoting 42 U.S.C. § 2000bb-1(b)).

The Supreme Court has stated

that RFRA was “intended to restore the compelling interest test .
. . in all cases where free exercise of religion is substantially
burdened.”

Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011)

(citations and quotation omitted).
This court dismisses the First Amendment claim as pled.
If the First Amendment claim is informed by RFRA such that the
compelling interest test applies to Plaintiffs’ free exercise of
religion claim under the First Amendment, that First Amendment
claim is duplicative of the RFRA claim asserted in Count 1 and is
therefore unnecessary.

On the other hand, if the First Amendment

claim is examined on its own without the RFRA umbrella, the court
applies the standard set forth in Smith.

Because the Controlled

Substances Act is a valid and neutral law of general
applicability, Plaintiffs may not ignore it based on the First

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Amendment.

See O Centro Espirita Beneficiente Uniao Do Vegetal

v. Ashcroft, 282 F. Supp. 2d 1236, 1241-48 (D.N.M. 2002).
E.

Counts 6 and 7--Declaratory and Injunctive Relief.

Count 6 seeks a declaration under the Declaratory
Judgment Act, 28 U.S.C. § 2201(a),3 that Defendants’ enforcement
of the Controlled Substances Act is unlawful, and that any
possible future enforcement will similarly be unlawful.

The

Ninth Circuit has described a declaratory judgment as offering “a
means by which rights and obligations may be adjudicated in cases
brought by any interested party involving an actual controversy
that has not reached a stage at which either party may seek a
coercive remedy and in cases where a party who could sue for
coercive relief has not yet done so.”

Seattle Audubon Soc. v.

Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (quotations omitted).

3

Section 2201(a) states:

In a case of actual controversy within its
jurisdiction, except with respect to Federal taxes
other than actions brought under section 7428 of the
Internal Revenue Code of 1986, a proceeding under
section 505 or 1146 of title 11, or in any civil action
involving an antidumping or countervailing duty
proceeding regarding a class or kind of merchandise of
a free trade area country (as defined in section
516A(f)(10) of the Tariff Act of 1930), as determined
by the administering authority, any court of the United
States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any
interested party seeking such declaration, whether or
not further relief is or could be sought. Any such
declaration shall have the force and effect of a final
judgment or decree and shall be reviewable as such.
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Accordingly, this court has dismissed Declaratory Judgment Act
claims involving past actions when those claims are duplicative
of other causes of action.

See Teaupa v. U.S. Nat’l Bank N.A.,

836 F. Supp. 2d 1083, 1092 (D. Haw. 2011).

Other courts have

similarly held that “[a] claim for declaratory relief is
unnecessary where an adequate remedy exists under some other
cause of action.”

Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d

700, 707 (N.D. Cal. 2009).

As Plaintiffs conceded at the

hearing, their declaratory relief claim is not cognizable as an
independent cause of action, as it essentially duplicates
Plaintiffs’ other causes of action.
In relevant part, Count 7 seeks an injunction
prohibiting Defendants from arresting or prosecuting Plaintiffs,
or seizing their sacraments, medicine, and assets.

However, as

Plaintiffs conceded at the hearing, a claim for “injunctive
relief” standing alone is not a cause of action.

Instead,

injunctive relief may be available as a remedy if Plaintiffs
prevail on a substantive claim.

See Hoilien v. OneWest Bank,

FSB, 2012 WL 1379318 (D. Haw. Apr. 20, 2012) (“the Court follows
the well-settled rule that a claim for injunctive relief cannot
stand as an independent cause of action”);

See Teaupa, 836 F.

Supp. 2d at 1091 (same); Pugal v. ASC (America’s Servicing Co.),
2011 WL 4435089 (D. Haw. Sept. 21, 2011) (same).

Accordingly,

Count 7 is dismissed, although this dismissal in no way precludes

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an injunction if Plaintiffs establish their entitlement to that
form of relief with respect to a substantive count.
VI.

CONCLUSION.
The court grants in part and denies in part the motion

to dismiss.

To the extent Count I asserts violations of RFRA

with respect to Plaintiffs’ claimed use of cannabis in the
exercise of their religion, the motion is denied.

In all other

respects, the motion is granted, and all other claims in the
First Amended Complaint are dismissed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 31, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Oklevueha Native Am. Chuch v. Holder; Civil No. 09-00336 SOM/BMK; ORDER GRANTING IN
PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT

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