MAY 2025 | 31 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. There is thus an argument to be made that Congress, in passing the appropriations rider, ceded federal jurisdiction over all medical marijuana activities to state regulators and law enforcement agencies, including the implementation of the state’s regime for civil and criminal penalties for statutory and regulatory noncompliance. Congress likely did not intend for the DOJ or the DEA to micromanage or commandeer state medical marijuana regulators and police technical violations of state licensing requirements. While this interpretation is admittedly on the far end of the spectrum, it would achieve the public policy goals of allowing a state to govern its own affairs and eliminate the uncertainty surrounding what degree of compliance is required to avoid federal penalties. Under this view, the possession of a valid license to possess, cultivate, distribute and sell medical marijuana should be a complete bar to the expenditure of federal funds in either a criminal or civil forfeiture action. In the absence of a valid license, proof that the cannabis products involved were only distributed to licensed users and were not diverted to recreational use should similarly constitute a bar to federal action. At the other extreme, a strict compliance test would provide the same degree of certainty regarding the type of conduct that can expose one to federal criminal liability; however, it would also have the effect of “turn[ing] each and every infraction into a basis for federal criminal prosecution ... in a manner likely to deter the degree of participation in [the state’s] market that the state seeks to achieve.”31 A middle-ground rule of substantial compliance or a simple case-bycase analysis would avoid both of these extremes but would also result in a continued lack of clarity regarding what level of compliance should be considered “substantial” or “sufficient” for the application of the expenditure prohibition. Whichever interpretation the 10th Circuit chooses to adopt – if the issue ever even reaches their consideration – it will always be beneficial to litigants to consider the possibility that federal expenditures in enforcement of the CSA or in seeking civil asset forfeiture could run afoul of the congressional appropriations rider. In the absence of facts supporting this argument, litigants must resort to the innocent owner defense where applicable and Eighth Amendment considerations as to whether or not the property seized constitutes an “excessive fine” for the criminal conduct alleged. LEGISLATIVE SOLUTIONS There are many actions Congress can take to resolve these conflicts and provide further protections and assurances to innocent owners. One would be to pass the Fifth Amendment Integrity Restoration (FAIR) Act of 2023, which: “requires counsel for an indigent property owner whose primary residence is the subject of a civil forfeiture hearing regardless of whether the owner requests counsel, raises the evidentiary standard from preponderance of the evidence to clear and convincing evidence, and sets forth factors courts must consider in determining whether a forfeiture of property used to facilitate the commission of an offense is excessive.”32 By strengthening protections for property owners across the board, the FAIR Act would have the added benefit of alleviating the uncertainty surrounding the medical marijuana market and would protect third parties affiliated indirectly with medical marijuana sales, cultivation and distribution. However, it would not completely resolve the uncertainty of having to rely on the legal and regulatory Congress likely did not intend for the DOJ or the DEA to micromanage or commandeer state medical marijuana regulators and police technical violations of state licensing requirements.
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