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News: 06/15/2016

Federal suit by Kenwood Native American church tossed

A federal case involving the right to use cannabis as part of a religious sacrament brought against Sonoma County by a Kenwood branch of the Oklevueha Native American Church (ONAC) was dismissed June 8 after a church attorney failed to show up for a conference, and had repeatedly failed to comply with court rules and procedures.

The lawsuit, filed last November, came after sheriff’s deputies raided the Valley of the Moon branch of ONAC at its Lawndale Road property in Kenwood, confiscating and then destroying over 600 cannabis plants. Church counsel soon filed a civil and religious rights lawsuit in U.S. District Court in San Francisco, charging in part that the seizure was illegal and had violated church members’ right to use cannabis in their religious practices.

Sonoma County Counsel Bruce Goldstein was pleased with decision to dismiss by U.S. District Court Judge Vince Chhabria, stating, “The claims in this case did not have merit and the County appreciates that the Judge has taken the step to dismiss the action at this early stage to minimize the cost to all parties.”

Sergio Sandoval, speaking as ONAC’s temporary legal spokesperson said the dismissal came “as a complete shock,” and said the church plans to file a motion to vacate the dismissal. Sandoval said the original attorney, Matthew Pappas of Long Beach, was no longer representing the church.

Sandoval said the dismissal had nothing to do with the substance of the lawsuit, but a failure to prosecute the case by Pappas.

Pappas had been admonished earlier this year by Judge Chhabria for missing a previously agreed to filing deadline, writing that, “Counsel for plaintiffs is warned that continued failure to meet deadlines, prosecute the case, or otherwise fail to live up to minimum standards of professional responsibility could result in sanctions and/or referral to this court’s standing committee on professional conduct.”

Attempts to reach Pappas were unsuccessful. His phone number now has a “temporarily unavailable” recording, and a previously valid email address is now not working.

The Valley of the Moon branch of ONAC first became visible in Kenwood last August when a church sign was posted in the driveway of a property on Lawndale Road. After getting a complaint, county code enforcement officials sent a letter saying a use permit was needed for a religious place of worship, and that their sign violated county sign regulations.

A couple of weeks later, on Sept. 14, the sheriff raid occurred, at which time the plants were seized. One of the church members who lived on site was arrested for marijuana cultivation and possession of marijuana for sale. According to ONAC’s spokesperson Sandoval, the man has still not been officially charged with any crime.

Later that fall, code enforcement staff sent a formal Notice of Abatement, saying the church had failed to fix the land use violations, and that further non-compliance could result in a lawsuit filed by the county against the church.

ONAC’s main branch is in Utah, and church representatives say they have thousands of members across the country. ONAC is open to all races, not just Native Americans.

ONAC has been in an ongoing, often bitter, debate with other Native American Churches about the use of cannabis as sacred sacrament. A number of Native American churches who use federally protected peyote as sacrament, have said that cannabis has never been part of Native American rituals and have challenged the overall legitimacy of ONAC.

ONAC has pushed back, arguing that cannabis and other herbs have been used historically for hundreds of years by medicine men, and that cannabis should be considered a sacrament and should be federally protected like peyote.

There have been a number of lawsuits involving ONAC asking for federal recognition of cannabis and protection from seizure.

Most recently, in an April decision by a unanimous three-judge panel of the Ninth Circuit Court of Appeals, the court affirmed a lower court decision involving the ONAC of Hawaii. The decision held that federal officials could legally deny the ONAC of Hawaii any exemption from federal laws prohibiting the possession and distribution of cannabis.

At the center of the dispute was a pound of marijuana that federal law enforcement officers in Hawaii seized from FedEx in 2009 that was addressed to a member of the Native American Church of Hawaii. The church sued, claiming, in part, a violation of the Religious Freedom Restoration Act.

The court decision summary stated that, “even assuming the plaintiffs’ use of cannabis constituted an ‘exercise of religion,’ no rational trier of fact could conclude on the record that a prohibition of cannabis use imposed a ‘substantial burden’ on plaintiffs exercise of religion.”

According to an April 6 Associated Press story on the decision, ONAC of Hawaii counsel said that they plan to appeal the decision.

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