Judge says high-flying pilot can’t transport pot to Alaska villages by air; his loss of license will stand

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In 2017, the Federal Aviation Administration revoked James M. Fejes Jr.’s pilot’s license, after he had been flying cannabis products to shops around Alaska with Flying High Investments, his company that was dissolved in 2020.

Fejes challenged the revocation in federal district court, saying the federal government does not regulate commerce within the state of Alaska. He was not crossing state lines with his bundles of weed, so interstate commerce laws didn’t apply. His arguments failed the Ninth Circuit.

“Although many states have legalized recreational marijuana, it continues to be a controlled substance federally,” Judge Ryan D. Nelson wrote in the ruling.

Fejes, who held a pilot certificate issued by the FAA, came under scrutiny after Alaska’s Alcohol and Marijuana Control Office (AMCO) reported him for violating regulations pertaining to the transportation of marijuana. Despite marijuana being legalized for most uses under Alaska state law, Fejes’s activities were deemed illegal under federal statutes.

The FAA invoked § 44710(b)(2), a provision that mandates the revocation of a pilot certificate when the individual knowingly engages in an activity related to controlled substances punishable by imprisonment for more than one year. Fejes’s use of aircraft for the distribution of marijuana fell squarely within this provision, leading to the revocation of his pilot certificate.

Fejes contested the revocation, arguing that the FAA lacked jurisdiction to regulate purely intrastate commerce such as marijuana delivery within Alaska. However, the panel rejected this argument, citing the constitutional authority of Congress to regulate interstate commerce, including the use of airspace.

Furthermore, Fejes attempted to invoke an exemption under FAA regulation 14 C.F.R. § 91.19, which allows for the transportation of controlled substances authorized by federal or state statutes. However, the FAA maintained that this exemption did not apply to Fejes’s case, as it relied on a different provision in law.

Finally, Fejes challenged the interpretation of § 44710(b)(2) by the FAA, arguing that his conduct did not align with enforcement priorities outlined in a memorandum on marijuana-related prosecutions. However, the panel dismissed this argument, emphasizing that a criminal conviction is not a prerequisite for the revocation of a pilot certificate under the statute.

The ruling fortifies the FAA’s authority to regulate aviation activities, even in the context of state laws that conflict with federal statutes.

While the U.S. Department of Justice has directed prosecutors to use discretion in spending resources to pursue marijuana crimes in states where pot is legal, the court opinion noted: That “does not alter marijuana’s status — it remains illegal under federal law.”

The ruling is at this link:

28 COMMENTS

    • This is pretty clear, the FAA has clearly noted time and time again that the moment you leave the ground intentionally (with a flyable vehicle) you are in FAA jurisdiction. Even with state laws trying to restrict the use of drones you see this coming up with the FAA saying sorry you can’t do that you can only restrict where they can take off and land. Furthermore if you look into the work that’s gone in by some companies like Terra Fugia you’ll see that part of the complexity is it needs to be registered as a car and a plane. NH, as far as I know, is the only one with a “roadable” aircraft on the books as a registerable motor vehicle for the roads.

    • More recently the federal government decided it has the authority to control the issue of marijuana back in 2005 in the case of:

      GONZALES V. RAICH

      They did so through the Interstate Commerce Clause and the Necessary and Proper Clause.

      Scalia (in one of his worst decisions in my view) said,

      “Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce…derives from the Necessary and Proper Clause.”

      Scalia was rightly known for his scathing dissents but on that occasion would feel the sting of the dissent from Justice Thomas:

      “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana.

      If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

      If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.”

      This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter.”

  1. What if a person uses a boat that is a documented vessel (i.e. registered with the federal government) to transport cannabis products in Alaska? Does the same law apply?

    • “………What if a person uses a boat that is a documented vessel (i.e. registered with the federal government)……..”
      My boats are registered through the Alaska DMV, not the Coast Guard.

  2. Village dealers, that have illegally operated for decades, are smiling.
    Unless stores get a years worth of weed delivered on the fall barge, the stores are done.

    That is how Jim West at The Board of Trade Saloon in Nome handled things.
    An entire years worth of beer & booze delivered yearly by barge.
    He had a BIG warehouse next to the bar …..lol.

  3. The article says, “Fejes contested the revocation….. …the panel rejected this argument, citing the constitutional authority of Congress to regulate interstate commerce, including the use of airspace.” It seems key elements are omitted. Apparently, the phrase, “use of airspace” is interpreted to include that within a single state boundary. It sounds like a strained over-reach; as if federal control over aircraft usage over-rides intra-state free trade.

  4. Come on Judge, don’t you realize how difficult it is to watch the Internet all day without being stoned

    • In the passenger’s baggage.

      The statute is applied to the pilot with the federally issued license …….and only if he “knows” the pot is on the plane.

      “……………. mandates the revocation of a pilot certificate when the individual knowingly engages in an activity related to controlled substances ………”

  5. He shoulda’ used an electric powered airplane. The FAA would have given him an award if he did.

  6. Just what the interior needs, more substance abuse issues. The pot community is a scourge on culture, no different than the alcohol or drug community. Native Alaskans should be livid concerning the availability of drugs, ALL drugs, in thier communities. It destroys thier way of life, thier youth and thier future. Wheres the Native outcry, the corporation resistance? One as to wonder.

    • AkDale, I agree with you, but the reality is that when you constrain Pot deliveries into the village, you will see a rise in violent crime.

  7. I knew a pilot that flew booze into dry villages. His only rule was, you had to accompany your own booze. I think the seat was free, but the freight was out of this world. Still doing it.

  8. It’s what happens when a state makes a law that goes against the federal rules. But when the feds decide to leave other things up to the states, everyone gets butthurt.

  9. Distributing marijuana via aircraft is a federal crime under 21 U.S.C. § 841(a), punishable by a term of imprisonment for more than one year. Was he ever convicted of this? If not, he’s supposed to be considered innocent until proven guilty. Did the State of Alaska convict him of anything? What snitch turned him in to the Feds anyway? The Feds are nobody’s friends.

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