Nebraska Attorney General Jon Bruning

Nebraska Attorney General Jon Bruning 

LINCOLN — Nebraska has asked the U.S. Supreme Court to close a “dangerous gap” in federal drug enforcement by making marijuana illegal again in Colorado.

Now the nation’s highest court must decide whether it will hear the case.

Attorneys General Jon Bruning of Nebraska and Scott Pruitt of Oklahoma took the extraordinary step of suing another state Thursday when they asked the Supreme Court to settle an important question: How can Colorado circumvent federal law that bans the cultivation, trafficking and possession of marijuana?

The lawsuit will be closely watched by groups with interest in law enforcement, drug legalization and states’ rights, who say the case marks the first time the justices have been petitioned to directly decide a marijuana dispute between bordering states.

In a press conference Thursday, Bruning said Colorado’s voter-approved pot laws violate the U.S. Constitution, which says the federal government decides which drugs are legal and which are illicit. When the highly potent pot grown and sold in Colorado rolls across the border, Nebraska’s criminal justice system feels the effect.

“This contraband has been heavily trafficked into our state,” Bruning said. “While Colorado reaps millions from the production and sale of pot, Nebraska taxpayers have to bear the cost.”

Attorney General-elect Doug Peterson, who takes office early next month, said he fully supports the decision to challenge Colorado’s law. Bruning kept him informed and shared legal briefs before filing the case, Peterson said.

“Federal law has declared (marijuana) a narcotic, but our current Department of Justice wants to give them a pass,” Peterson said. “But it wreaks all sorts of havoc on surrounding states.”

The lawsuit, which does not seek financial damages, argues that Colorado has violated the federal Controlled Substance Act of 1970 along with the U.S. Constitution’s supremacy clause. That provision says federal law trumps state law when a conflict exists between the two.

In that sense, the case could also affect Washington, Oregon, Alaska and the District of Columbia, where marijuana has been decriminalized.

Tamar Todd of the Drug Policy Alliance in Berkeley, California, a group that has helped pass state marijuana initiatives, said she hopes that the high court refuses to even consider the case.

“All of the state laws have been drafted with the goal of avoiding direct federal conflict and exercising the power given to states under the 10th Amendment to control and regulate drugs on a local level,” she said Thursday.

Colorado opened dispensaries for medical marijuana in 2009. In January, specially licensed stores started selling retail weed to customers 21 and older.

Marijuana remains an illegal drug in the seven states bordering Colorado. Bruning said he invited more of the surrounding states to join the lawsuit but found no takers besides Oklahoma.

Bruning said he called Colorado Attorney General John Suthers before filing the suit. Suthers, in a press release Thursday, said he wasn’t surprised by the lawsuit, given the grumbling he’s heard from surrounding states.

“It appears the plaintiffs’ primary grievance stems from nonenforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado,” Suthers said. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court.”

Asked how much it will cost Nebraska to pursue the legal challenge, Bruning said printing the 40 special booklets required by Supreme Court rules cost $3,000.

News of the lawsuit was welcomed by sheriffs from western Nebraska counties — particularly those along Interstate 80, which have seen spikes in their marijuana-related arrests tied to Colorado pot.

For example, Deuel County, which borders Colorado, made one marijuana arrest in 2000 and 63 last year, according to statistics from the Nebraska Crime Commission. Overall, Nebraska officers made 7,665 arrests for possession or sale of pot in 2013, which was nearly 500 more than in 2000.

“This stuff is illegal here, it’s coming here, and it’s had an adverse effect on our citizens and way of life,” Scotts Bluff Sheriff Mark Overman said. “Nebraska, from the highest elected officials on down, should do something about it.”

At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the matter in Ogallala, a panel of state senators heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska, increasing numbers of impaired drivers and possession by teens as young as 14.

The decision to sue comes days after Congress passed budget legislation that effectively prevents the federal government from challenging state medical marijuana laws. The lawsuit filed Thursday targets only Colorado’s Amendment 64, approved by voters to tax and regulate marijuana in a way similar to the regulation of alcohol.

Bruning, who frequently criticizes what he calls federal government overreach, found himself in the unusual position Thursday of arguing that the government hasn’t flexed enough muscle. The Republican attorney general accused the administration of President Barack Obama of failing to uphold the law.

“Attorney General Eric Holder has said we’re not going to enforce the law, and that is unconstitutional,” he said.

Contact the writer: 402-473-9587, joe.duggan@owh.com

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