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Feds Don’t Owe Tribal Church for Seized Drugs

HONOLULU (CN) - The government does not have to compensate a Native American church for its seized marijuana stash, intended for use in religious ceremonies, the 9th Circuit ruled Monday.

But the decision does give leave for Michael Rex "Raging Bear" Mooney and the Oklevueha Native American Church of Hawaii to fight for declaratory and injunctive relief barring the government from enforcing the Controlled Substances Act against them.

Mooney and the church had filed suit in 2009 after the Drug Enforcement Administration seized a FedEx package containing one pound of cannabis in Tupperware containers, addressed to Mooney. The marijuana, worth about $7,000, was turned over to the Honolulu Police Department and later destroyed, but the government said it had "no interest" in pressing criminal charges, and didn't.

Mooney said he planned to use the cannabis in certain religious activities, namely "lunar use" and "sweat lodge use," and that interference with those activities curbed his religious freedom.

Mooney sought the return of the product or compensation for its "theft and conversion," under the Religious Freedom Restoration Act (RFRA) of 1993.

U.S. District Judge Susan Oki Mollway dismissed the case because "the court could not order the government to return that which it does not have." She also said that the religious freedom act "does not waive sovereign immunity and authorize lawsuits for money damages."

A three-judge appellate panel heard oral arguments on the case in February and revived the claim for an injunction Monday.

Although the cannabis was rightfully seized pursuant to the Controlled Substances Act (CSA), the church should have the opportunity to fight for a protective injunction for "future use" of marijuana, on "pre-enforcement" grounds, the decision states.

The court cited the church's "concrete plan" to violate the drug law, the "unique circumstances of the plaintiffs' claims" and their "genuine threat of imminent prosecution."

"Plaintiffs claim that they fear for their ability to continue to cultivate, consume, possess, and distribute marijuana for religious purposes without being branded criminals and made to face fines and imprisonment," Judge Mary Murguia wrote for the court. "In support of this fear, they point to a DEA raid in March 2010 on another Hawaii-based church that purports to use marijuana as a religious sacrament."

"Indeed, the Supreme Court has reviewed a RFRA-based challenge to the CSA without requiring that the plaintiffs first seek a religious use exemption from the DEA," she added. "In so doing, it recognized that RFRA 'plainly contemplates that courts would recognize exceptions [to the CSA] - that is how the law works.'

"Because this is not an abstract disagreement but rather involves the application of well-developed law, (including the First Amendment right to religious freedom, RFRA and the CSA) to an existing case and controversy (the seizure of plaintiffs' marijuana), we conclude plaintiffs' claims are fit for review." (Parentheses and italics in original.)

Mollway was right, however, to not let the church seek return of, or compensation for, the seized marijuana.

The RFRA does not unambiguously waive sovereign immunity to authorize money damages, and law enforcement officers have immunity under the Federal Tort Claims Act related to the detention of property, the panel found.

"We also agree with the district court that it cannot order the government to purchase substitute marijuana because doing so would be an end run around the prohibition on money damages," Murguia wrote in a footnote.

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