Nebraska, Oklahoma ask US Supreme Court to block Colorado pot sales

Dec. 18, 2014, 6:28 a.m. ·

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The top legal officials for the states of Nebraska and Oklahoma have joined in a lawsuit arguing legal marijuana sales in Colorado violate the United States Constitution.

It will be up to the U.S. Supreme Court to decide if the case has any merit.The precedent setting argument comes from neighboring states where pot is still illegal and arrests for trafficking and possession have shot up in the past year.

Attorney General Bruning announces lawsuit against Colorado marijuana. (Photo: Bill Kelly/NET News)

Attorney General Jon Bruning made the announcement just days before he leaves office. At a news conference at the State Capitol he said

the State of Nebraska joined with Oklahoma in filing the lawsuit

in response against Colorado. That state legalized medical marijuana in 2013 and recreational pot has been available from licensed retailers since the beginning of this year.

Bruning said he finds it “frustrating to have a sister state reaping tens of million ns of dollars in tax revenue and sending over the problem side of it to us.”

Those problems, according to Bruning, include a significant spike in marijuana busts by local law enforcement, and increased numbers of impaired drivers, both of which have impacted police and the courts.

“I think it’s a moral issue,” Bruning said. . “It’s a gateway drug that is a detriment to society. I think this is a critical issue to the future of our state. I don’t’ want it to be a legal option for my children or your option or anyone’s children in this state or in this country.”

Colorado Attorney General John Suther said the case “is without merit” and intends to challenge it.

For law enforcement in western Nebraska the decision to take Colorado to court over pot is long overdue. Interstate 76 delivers Colorado travelers and tourists directly into Deuel County, where it intersects with I-80 at the Nebraska border.

Deuel County Sheriff Hayword displays pot seized in a 2013 traffic stop. (Archive Photo)

Sheriff Adam Hayward points out his county saw another record year for pot busts. He has seen an impact on his department’s budget and time-consuming processing by his four deputies.

“Colorado legalized marijuana, we did not,” Hayword said. “We didn’t ask for the issues its causing. It’s a burden we did not ask for.”

For the past two years Scotts Bluff County Sheriff Mark Overman advocated challenging state-legalized marijuana in the federal courts. He was delighted to hear a forceful statement of support coming from the Attorney General.

“If they can accomplish what they set out to do it will be far more helpful than putting more cops on the street,” Overman said. “If you can stop Colorado from selling it openly. We can’t just put roadblocks up at the border and stop everybody. We can’t battle it that way.”

The lawsuit filed by Nebraska and Oklahoma does not ask Colorado to pay damages associated with the impacts in neighboring states. The question being asked of the U.S. Supreme Court remains fairly narrow. It asks if the federal government still defines marijuana as an illegal narcotic is it constitutional for a state to pass a law that, in effect, supersedes federal law.

Attorney General Bruning points to “Supremacy Clause” in the U.S. Constitution which has long been used to uphold the principle that when a state law and a federal law are in conflict, the federal law wins.

“That is the issue here and in the end it’s not more complicated than that,” Bruning said. “This is whether or not Colorado’s law conflicts with the Controlled Substance Act. Whether or not that should be thrown out because of the Supremacy Clause. We of course think it should be.”


In a prepared statement Colorado’s Attorney General John Suther said he will defend his state’s citizen driven legalization of marijuana.

“It appears the plaintiffs’ primary grievance stems from non-enforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado. We believe this suit is without merit.”

A representative for the retail marijuana industry said his organization does not think the lawsuit will succeed.

Michael Elliott, the director of the Marijuana Industry Group argued that “what these states are asking for is to put the drug cartels back in charge” by taking away a regulated open market place for cannabis. Elliott says continuing to try and ban marijuana is “an awful policy.”

“It hasn’t worked and I think we here in Colorado have shown this can be responsibly done,” Elliott said.

The case is being filed at the end of a year when Colorado growers and sellers have seen undeniable economic success. Combined sales of both medical and recreational topped 700 Million dollars in 2014. Elliott claims legal cannabis is on track to become a billion dollar industry next year.

A significant portion of the legal sales come from out of state customers.

The Marijuana Industry Group commissioned a study that found about half of the recreational sold went to out of state customers who laid out 150 to 200 million dollars for their purchases.

Cases settling arguments between states traditionally go straight to the U.S. Supreme Court. They are fairly rare cases and the justices pick only a very few to hear as a trial case.

Jill Robb Ackerman, an attorney with Baird Holm in Omaha with experience in litigating constitutional cases said these types of challenges are “rare."

"You don’t see it that often," she said.

Ackerman said when states have these types of arguments,” this is really the only forum that they have to probably resolve that.”

The Supreme Court could elect not to hear the case at all. Ackerman says whether they pass on it or hear the arguments at trial their actions will be an important precedent for the future of legalizing marijuana in the United State.

“This case, if it’s decided, could have great impact on what’s happening in Washington and the state of Colorado,” Ackerman said.

Arguing the lawsuit will be left to Nebraska’s new Attorney General, Doug Peterson, who will take office early in January. Peterson previously he would be open to taking some kind of legal action in response to Colorado’s marijuana making its way into neighboring states.

(EDITORS NOTE: NET News staff members Grant Gerlock, Fred Knapp, and Mike Tobias also contributed to this story.)

(CLARIFICATION: Earlier versions of this story, broadcast and online, referred to attorney Jill Robb Ackerman as having "consulted for the Governor’s office on legal matters." This incorrectly characterized her role as a Commissioner for the Commission on Uniform State Laws, appointed by the Governor.)