ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS FIRST AMENDED COMPLAINT
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.;
MICHAEL REX “RAGING BEAR” MOONEY
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,
CIVIL NO. 09-00336 SOM/BMK
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT
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. This court grants that motion only in part.
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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).
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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. That motion is granted in
part and denied in part. 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.
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
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