The states of Nebraska and Oklahoma filed a lawsuit recently against the state of Colorado, alleging its recreational marijuana stores are propagating the distribution of marijuana into their states causing resource strain to their criminal justice systems. They also charge the federal government with creating a “dangerous gap” in drug laws by permitting Colorado to authorize recreational use.

Many have asked, how can one state sue another? A state may sue another state in the Supreme Court, which has exclusive and original jurisdiction. State vs. state lawsuits are not always that interesting to the mainline media, so we do not hear about them very often. For example, in the case State of Oklahoma vs State of Texas 258 U.S. 574, Oklahoma sued Texas to settle a controversy between them over their common boundary along the course of the Red River and over the title to the southerly half of the river bed.

In the current matter, Nebraska and Oklahoma face an uphill battle. I predict Colorado’s states laws will be upheld. Whether these states even have standing to sue is questionable. Have the constitutional rights of these states been affected by what is in effect a nuisance lawsuit? After determining the standing question, key questions for the court may be: whether Colorado’s marijuana laws “create an unreasonable burden” or create such a nuisance on Nebraska and Oklahoma that they have a right to relief. If so, arguments will be a “balancing of interests” test. If Colorado does have an obligation to “lessen the burden” to its neighbors, we will see what this means.

Or perhaps Nebraska and Oklahoma will simply be challenged to mitigate their damages by accepting the consequences of the times they live in—making their own internal adjustments to the changing times, and the moving of their “cheese.” (More on this below.)

Finally, has the federal government created a “dangerous gap” by its current drug enforcement policies toward Colorado? The problem here is that Colorado is not required to enforce federal law, and if the federal government has chosen not to enforce its own laws, then Colorado owes no redress to the plaintiffs.

Analogy: Wet vs Dry Communities.

This case reminds me the dilemma of dry vs. wet communities in the United States. A “dry community” is one that has local laws banning the sale of alcoholic beverages. So a grocery store in a dry community does not carry alcoholic beverages (and there are no liquor stores), and people have to go to a “wet community” to purchase alcohol. Question: Does the dry city sue the wet city because someone from the dry community went to the wet community, purchased some adult beverages and went home, got drunk and caused a domestic disturbance? What if this person drank and drove, causing injury or death to someone?

In this case, the dry law enforcement agency has to deal with incidences and expend resources to deal with individuals who choose to bring or use alcohol into dry communities. Can or should the wet community become directly responsible for the action of every person who makes an adult decision about the location of their alcohol consumption? Should they have to track every person who buys their liquor? The two heartland states suggest as much of Colorado.

Do Colorado’s Laws Create an Unreasonable Burden on Nebraska and Oklahoma?

This will require an individualized balancing test between the rights of the people of Colorado and the “burden” these laws allegedly create on their neighbor states. In addition, Nebraska and Oklahoma have to answer the question of whether they have mitigated their own damages. It could be argued, and it just may be, that the current drug policies of these states are behind the times, and their damages are created because of antiquated state and local laws.

Do the Federal Government’s Policies Toward Colorado’s Laws Create a “Dangerous Gap”?

Nebraska and Oklahoma argue that Colorado has “created a dangerous gap” in the federal drug-control system. “… Marijuana flows from this gap into neighboring states,” the lawsuit alleges. What they do not acknowledge is that the federal drug-control system itself cannot fill the gap. This is likely why the recent federal budget states: “None of the funds made available in this Act to the Department of Justice may be used (medical marijuana states listed) … to prevent such States from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” This year marks a historical move towards eliminating “the gap” by, in essence, inching slowly out of an indefensible position on medical marijuana. More importantly to note is that Colorado does not have any obligation to enforce federal laws. The state of Colorado does not have to step into the shoes of the DEA in other words, to prosecute people in violation of federal law.

The next question, the big question is, whether marijuana is “dangerous.” The millions of advocates, casual users and patients throughout the United States do not believe marijuana is dangerous, and as such would argue that there cannot be a “dangerous gap.” Many believe the real danger lies in the failure of states or communities to embrace a much needed “paradigm shift” on the issue of marijuana, to address the real dangers of illegal gangs engaged in “black market” drug activity.

The Danger of the Black Market.

The term “black market” in this context, refers to illegal activity. Some think of gangs in the context of illegal drug activity. However, any illegal cultivation or sale of drugs can be considered “black market.” For example, thousands of good people use marijuana, grow it and sell it to their friends and family to supplement their income. These people are engaged in “black market” activity.

Dangerous gang-related black market activity, which is prevalent in many states, including Oklahoma and Nebraska, should not be underestimated. Gangs often dominate the marijuana industry in states where there is no regulation. Many believe that states that have enacted laws permitting the regulated growth, possession, use and sale of marijuana are actually able to challenge the prevalence of gang-related black market activity by taking over the market legally and responsibly. This is because, if given a choice, most citizens would like to obtain marijuana legally, just as they do alcohol, and desire safety regulations including dispensary testing requirements.

It could be argued gangs are edged out of a responsibly managed marijuana system. With more competition, gangs will go to states that have no regulations; which could be part of Nebraska and Oklahoma’s gang and drug related crimes problems.

Is Marijuana Dangerous?

A growing majority of Americans do not believe marijuana is dangerous and have therefore passed laws permitting its use, possession and sale. What Nebraska and Oklahoma law enforcement, and many in the federal government now have to deal with, is the moving of their cheese; the paradigm shift in the minds of the American people. If marijuana is not dangerous, what will we do? If we make marijuana dangerous by prohibiting it, by failing to regulate it, and by our inaction inadvertently promote black market gang activity, how shall we proceed from here?

Who Moved My Cheese?

The best-selling book “Who Moved My Cheese” by Spencer Johnson, M.D., tells a compelling story about change and change management. Change is hard. Accepting (but not liking) the end of alcohol prohibition was hard on a lot of good people who did not, for whatever reason, want to change. “Cheese” is a metaphor for “the goal.” Many years ago, many faced the impending change of ending alcohol prohibition. For them, the change was difficult. Their “cheese” was being moved. Moving “cheese” creates a need for paradigm shifts, which can be unnerving for people who have set their sights on a goal, only to see it fail.

Why Do Oklahoma and Nebraska Citizens Break The Marijuana Laws of Those States?

Why would Oklahoma and Nebraska cannabis users risk going to Colorado to obtain a drug that is likely available on the black market in their state? Some might argue there are at least two reasons:
1. The citizens of these states want to use cannabis recreationally or medically that is more likely to be better quality and contain fewer contaminates.
2. The citizens of these states do not wish to contribute to black market activity in their respective states by purchasing potentially contaminated marijuana, which will, in turn, support drug-related gang activity.

So this will be an interesting case to watch, and will likely have significant legal consequences. The balancing of the rights and obligations of the respective states will be an interesting debate. In the end, Nebraska and Oklahoma will ultimately have to answer the question, however, whether to support gang-related black market activity, or enact laws that address the reality that marijuana users in their respective states need regulated and safe access to cannabis. At this time, I would encourage each person to contact their local advocacy group and take a stand for medical marijuana rights; this is a time to put political pressure on the federal government to enact a scheduling change; this is not a time to cower and worry.