NOT FOR PUBLICATION FILED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

2 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

3 (“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

4 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.

5 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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