Ann Borges v. County of Mendocino

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANN MARIE BORGES, DBA Goose Head No. 22-15673
Valley Farms; CHRIS GURR, DBA Goose
Head Valley Farms, D.C. No. 3:20-cv-04537-SI
Plaintiffs-Appellants,
MEMORANDUM*
v.
COUNTY OF MENDOCINO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted February 16, 2023
San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Ann Marie Borges and Chris Gurr (collectively “Plaintiffs”) appeal a district
court order dismissing their due process claim that the County of Mendocino (the
“County”) arbitrarily and capriciously denied their application for a cannabis
cultivation permit. Plaintiffs additionally appeal the district court’s order granting
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
summary judgment to the County on their equal protection class-of-one claims that
the County unfairly singled them out in denying that cannabis cultivation permit
and then rezoning their neighborhood as a “cannabis prohibition district.” We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. As no federally protected property interest exists in cultivating
marijuana, the district court properly dismissed Plaintiffs’ substantive due process
claims. The Controlled Substances Act (“CSA”) states that “no property right shall
exist” in marijuana as a Schedule I drug with “no currently accepted medical use in
treatment in the United States.” See 21 U.S.C. §§ 881(a)(1), 812(b)(1)(B). And,
while Plaintiffs attempt to “prove the marijuana in question is part of intrastate
commerce,” we cannot revisit Gonzales v. Raich, 545 U.S. 1 (2005), which upheld
the CSA as a valid exercise of Congress’s Commerce Clause authority. In Raich,
the Supreme Court pointed to Wickard v. Filburn, 317 U.S. 111 (1942), and held
that even medical marijuana homegrown for personal use affected interstate
commerce because even a small amount of cannabis could have a “significant
impact on both the supply and demand sides of the market for marijuana.” Raich,
545 U.S. at 30.
Plaintiffs argue that we should reconsider Raich’s holding because more
states have legalized marijuana in some form. But the widespread availability of
marijuana strengthens Raich’s analogy of the national, albeit illegal, marijuana
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market to the wheat market in Wickard, because a greater supply of marijuana now
exists in that national market as a result of state legalization. Regardless, as it is
the Supreme Court’s “prerogative alone to overrule one of its precedents,” it is not
for us to overturn Raich or rewrite the CSA to recognize a federally protected
property right in marijuana cultivation. United States v. McCalla, 545 F.3d 750,
753 (9th Cir. 2008) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)); see also
United States v. Langley, 17 F.4th 1273, 1275 (9th Cir. 2021) (per curiam) (finding
that the Ninth Circuit remains bound by its prior determination that “federal law
does not recognize a substantive due process right to use medical marijuana”
notwithstanding subsequent widespread state legalization of medical marijuana),
cert. denied, 142 S. Ct. 1398 (2022).
2. The district court did not err in granting summary judgment to the
County on Plaintiffs’ claims that the denial of their cannabis cultivation permit
violated equal protection. To prevail on their class-of-one claims, Plaintiffs must
show that they have been “[1] intentionally [2] treated differently from others
similarly situated and that [3] there is no rational basis for the difference in
treatment.” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122–23 (9th Cir.
2022) (alterations in original) (quoting Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam)).
In 2017, the County enacted the Medical Cannabis Cultivation Ordinance
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(“MCCO”) No. 4381, setting out a phased permitting process intended to allow
legacy growers to enter the newly legal state market first. Plaintiffs applied for a
Phase One permit for existing growers. In order to obtain a Phase One permit, the
County required Plaintiffs to provide “proof of cultivation at a cultivation site prior
to January 1, 2016.” MCCO § 10A.17.080(A)(1). The MCCO provides a carveout
for legacy growers who had been cultivating cannabis on a different site, but have
since relocated, and requires those applicants to provide “[p]hotographs of any
cultivation activities that currently exist on the legal parcel” that is the origin site.
Id. § 10A.17.080(B)(1)(b) (emphasis added).
Plaintiffs did not provide evidence that they were currently cultivating
cannabis on any site on January 1, 2016, instead providing evidence of a coastal
location where they had cultivated cannabis in 2009 and a location in Willits,
California, where they had cultivated cannabis in the 1980s. It is undisputed that
Plaintiffs were not cultivating cannabis on any site on January 1, 2016. The
MCCO requires Phase One permits to be issued to applicants who were currently
cultivating cannabis on January 1, 2016.1
1
While we hold that the Phase One current cultivation requirement is clear from
the face of the MCCO, our understanding is bolstered by the “Frequently Asked
Questions” that were posted on the County’s website during the period that
Plaintiffs applied for the permit, which provide:
When establishing “proof of prior cultivation” the cultivation activities
before and after 1/1/16 must be the same legal parcel (See MCC[O]
§10A.17.080(B)(1)(a) & (b)). This legal parcel will become the origin site
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Thus, in order to establish an equal protection violation, Plaintiffs must
present evidence that other “similarly situated” Phase One applicants who did not
meet the MCCO relocation requirements received Phase One permits. And
Plaintiffs failed to identify any comparators who are “similarly situated” to them
“in all material respects.” SmileDirectClub, 31 F.4th at 1123. Five out of six
comparator Phase One applicants presented by the Plaintiffs were currently
cultivating marijuana at an origin site on January 1, 2016, and the County had “no
documentation” that the sixth comparator applicant had ever actually applied for a
relocation permit. Plaintiffs have not identified an applicant who was granted a
Phase One permit and were not cultivating at an origin site on January 1, 2016.
Thus, Plaintiffs fail to establish a triable issue of fact on their equal protection
claims for the denial of a Phase One permit.
3. The district court likewise did not err in granting summary judgment
on Plaintiffs’ claims that the rezoning of their neighborhood as a “cannabis
prohibition district” violated equal protection. As with their permitting claims,
Plaintiffs fail to present evidence of “similarly situated” cannabis cultivators who
for purposes of relocation. Only after establishing prior cultivation on the
origin site can a cultivator proceed with the relocation process for a permit
on a destination site under MCC[O] §10A.17.080(B)(3).
The FAQs make plain that the origin site must be cultivated “before and after
1/1/16,” and Plaintiffs did not present evidence of a qualifying origin site for
purposes of the relocation requirements.
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were treated differently in the opt-out zoning process. Indeed, the County’s
rezoning ordinance did not explicitly target the Plaintiffs alone, as another
neighborhood, Deerwood, was also deemed a cannabis prohibition district.
Mendocino County, Cal., Ordinance § 20.119.070(A).
Moreover, Plaintiffs fail to establish a triable issue of fact on the question of
whether the rezoning of their neighborhood had a rational basis. “Federal judicial
interference with a local government zoning decision is proper only where the
government body could have no legitimate reason for its decision.” Dodd v. Hood
River County, 59 F.3d 852, 864 (9th Cir. 1995). Here, the County adopted the
cannabis prohibition districts after a year-long community listening process, which
included County-funded studies, community surveys, and county-wide meetings.
The record shows that there was strong community support for designating the
Plaintiffs’ district, as well as the Deerwood neighborhood, as an opt-out zone. As
we must exercise caution not to “transform[] run-of-the-mill zoning cases into
cases of constitutional right,” Olech, 528 U.S. at 566 (Breyer, J., concurring), the
district court properly granted summary judgment to the County on the Plaintiffs’
class-of-one equal protection claims concerning the rezoning of their
neighborhood.
AFFIRMED.
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