Crime & Courts

Pilot can’t fly marijuana to retail stores in Alaska even if sales are legal, federal judges rule

A federal appeals court has upheld the revocation of a man’s pilot certificate after he delivered marijuana by plane to retail stores in Alaska through his business Flying High Investments.

James M. Fejes Jr. had challenged the loss of his pilot certification by the Federal Aviation Administration and argued that Congress couldn’t regulate commerce occurring within the state of Alaska.

But a three-judge panel of the 9th U.S. Circuit Court of Appeals found that the Alaska law legalizing marijuana distribution didn’t override federal law that criminalizes the action.

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

And even though the U.S. Department of Justice has directed prosecutors to exercise discretion in pursuing certain marijuana crimes in states where pot is legal, the opinion said: That “does not alter marijuana’s status — it remains illegal under federal law.”

Congress can regulate Fejes’ conduct because it involved using airspace — a “channel of commerce squarely within congressional authority,” the judges ruled.

Distributing marijuana via aircraft is a federal crime punishable by more than a year in prison.


“Even if an airplane, like a car, is mainly used for intrastate activities, its operations could substantially impact interstate commerce,” the panel found.

Alaska voters approved a ballot measure in 2014 that decriminalized the possession, cultivation, distribution and recreational use of marijuana.

Fejes owns Flying High Investments, an Alaska company that operated a marijuana grow operation and was licensed by the Alaska Marijuana Control Board, which regulates marijuana use within the state.

In some remote parts of Alaska, planes are the only mode for delivery of goods, including marijuana, Fejes argued in his petition.

The FAA caught wind of Fejes’ flights after Alaska’s Alcohol and Marijuana Control Office reported him for violating its regulations. It accused him of withholding information that he was transporting the pot by plane, according to the opinion. He had only told the state regulatory office that he used his personal vehicle for the transport.

The control office then alerted the FAA that Fejes was using his private plane to transport marijuana.