Haze Hangs over Nantucket & MV Sounds Re: MA Medical Marijuana

Massachusetts is one of a number of states that recently passed a medical marijuana law (in 2012) allowing qualified patients legal access to cannabis.[1] Nonetheless, while voters in the Commonwealth have given medical marijuana the "go-ahead," under federal law, its possession, sale, and cultivation is still illegal.[2]

The medical marijuana law in Massachusetts requires a medicinal marijuana dispensary in each of Massachusetts' fourteen counties.[3] However, Nantucket and Martha's Vineyard, Massachusetts's two coastal islands, each of which is its own county (Nantucket County and Dukes County, respectively) are running into a roadblock that risks compromising island patients' ability to access medicinal cannabis. With no authorized cultivators currently operating on either island, any medicinal marijuana prescriptions filled by the required dispensaries would necessarily have to receive their stock from mainland Massachusetts. Because the only way to reach Martha's Vineyard and Nantucket is by boat or air, a federal/state law conflict has arisen in relation to state-legalized marijuana. Let me explain.

The principal way of accessing both islands is by boat over (maritime) waters subject to federal jurisdiction, where possession and transportation of marijuana remains illegal under federal law. Transporting medical marijuana that is otherwise legal on mainland Massachusetts becomes a potential criminal issue when the transport occurs across federal waters. This is because federal law prevents one from distributing, selling and/or cultivating cannabis. For that reason, the thirty-some miles of federal waters between mainland Massachusetts and the Islands has been headlined as a "cannabis conundrum," as state authorized activity and federally proscribed activity relating to the same conduct directly conflict due to "federal waters" status. Because the United States Coast Guard has law enforcement authorization to board and search vessels on federal waters to ensure compliance with federal laws regardless of the state's apparently landlocked legislation[4], state law is both trumped and overruled.

Because of this, dispensers, physicians and patients are all exposed to potential federal criminal sanctions whenever transporting or "carrying" marijuana to Nantucket or Martha's Vineyard. Correspondingly, this also presents a local challenge for island patients, as legal access to medicinal cannabis is significantly limited, due to the inability to lawfully bring cannabis to the islands. One possible solution is to maintain a cultivating dispensary on each island, to serve Martha's Vineyard and Nantucket's visiting and year-round patient populations.

To date, there has been no federal initiative to promote or permit the use of marijuana. However, pending legislation directed at mitigating the actual potential for federal criminal prosecution is under consideration, and the U.S. House and U.S. Senate have each recently passed amendments that would end federal interference in state level marijuana programs. The U.S. House passed the Rohrabacher-Farr amendment[5], which applies to thirty-nine states and protects patient access to medical cannabis. The U.S. Senate recently followed suit with the Mikulski amendment to the CJS bill for fiscal 2015, which corresponds to the language of the Rohrabacher-Farr amendment. The Mikulski amendment "bans the Department of Justice from spending money to prevent the implementation of state-level cannabis programs, removing funding for federal medical cannabis raids, arrests and prosecutions where medical cannabis is legal." [6] Nonetheless, it is important to note that the Mikulski and Rohrabacher-Farr amendments do not legalize medical marijuana; it is still a federal crime to possess, sell or cultivate it. In effect, the amendments only limit the resources and ability of the federal government to interfere with state medical marijuana programs.

Interestingly, the recent spate of legislation has little effect on Massachusetts' unique geography and the "cannabis conundrum" cloud that lingers over Nantucket and Martha's Vineyard. While these amendments may protect physicians, distributors and patients with regard to state permitted medical marijuana, they do not address the "overseas transportation" necessary to reach Nantucket and Martha's Vineyard. The problem is exemplified by a patient boarding a ferry with a state-legal quantity of marijuana. Once at sea, mid-way to one of the islands, the same patient, no longer on Massachusetts land, is subject solely to federal jurisdiction and criminal prosecution. Since the amendments only prevent funding federal law enforcement actions designed to interfere with the state-run cannabis programs, while in the federal waters, the patient has no state protections, and no attendant benefit of the federal "blind eye" being applied on Commonwealth soil, at least until the ferry lands on Nantucket or Martha's Vineyard. As such, federal arrests for cannabis possession and/or transportation are "fair game." All of which means unless or until Congress offers to "bridge" these troubled waters - caveat emptor, i.e., buyer beware!

[1] Massachusetts Session Laws, Act of 2012, Chapter 369, "An Act for the Humanitarian Medical Use of Marijuana"

[2] 21 U.S.C. § 811, Controlled Substances Act (CSA),

[3] 105 CMR 725, "Implementation of an Act for the Humanitarian Use of Medical Marijuana"

[4] 14 U.S.C. § 89, Coast Guard Law Enforcement Authorization

[5] Amendment to H.R. 2578 "Rohrabacher-Farr Amendment"

[6] Brown, Christopher, "Senate Vote Reaffirms Congressional Support to End Federal Interference in State- Level Medical Marijuana Programs," (June 11, 2015) "

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