The New Rules of Boating and Cannabis

As more states legalize cannabis, a question about carrying personal usage on board arises: what’s legal and what’s not?

The New Rules of Boating and Cannabis

The summer night is calm over the San Juan Islands as Steve’s classic 34-foot trawler lazily swings on the hook. His wife sleeps soundly below after a sun-kissed day underway. Steve takes in the brilliant cosmos of stars from the flybridge and lights a pre-rolled joint. He legally bought the cannabis product for less than $10 from a store on the mainland. After a deep inhale, he gazes at the Big Dipper and takes a moment to appreciate being alive.

Scenes like this are commonplace in American boating, especially where cannabis is legalized in states such as Washington. But the combination of marijuana and boats—simple in concept—is anything but in practice. The twisted maze leads to ramifications ranging from dueling jurisdictions and complications of vessel operation.

Is Steve Breaking the Law?

Steve is a real Puget Sound boater and recreational marijuana user. He’s owned both sail and powerboats over the decades, and by mainstream standards, is an upstanding citizen: gainfully employed with a notable career. But simply getting the rules straight is a challenge.

“It’s a nightmare for a boater,” said Steve. “What rules do you follow? You don’t even know you’re in violation of rules sometimes.” Steve is aware that the U. S. Coast Guard (USCG) operates under different rules than local law enforcement agencies. “I know they can board me at any time, and they’ve done it to me twice. Both times, by the way, I got a ‘nice boat’ as they left, which was great.”

Recreational marijuana is legal according to Washington state regulations, but marijuana is still a Schedule I controlled substance on the federal level. Schedule I drugs have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, LSD and “magic” mushrooms. By comparison, Schedule II drugs are similarly categorized as having a high risk of abuse but some accepted medical benefits, including cocaine and crystal meth.

Steve thinks marijuana should be treated like alcohol: in a consistent manner by all law enforcement entities a boater may encounter. Operating any vessel under the influence is a no-go, just like booze. “When they [the USCG] boarded me, they didn’t blink that I had $400 worth of booze on board. But if they found one ounce of weed, what would they have done? I have no idea.”

Similar thoughts are echoed on the professional side of yachting. Jason is a prominent long-time yacht broker also based out of the Puget Sound region. He started working in boatyards and moved up into dealerships. Despite Jason’s success as a broker with more than enough qualifications to be a licensed captain, he’s made his career work without. Why? His love of reefer.

“I don’t think that’s ever really going to change,” he said. “Psychologically, it cools things down a lot. Keeps things a lot more chill, easier going. It [cannabis] makes the nights really nice, makes the stories last a little longer and the jokes a little funnier. I’ve always been a constant user of it.”

When on the job, Jason is always sober and runs a completely dry boat. For him, recreational marijuana use is for when the boat is completely tucked away. The problems come when holding a captain’s license because the entire process is managed federally—where one is subjected to drug testing and greater liability if tests come up positive.

“My biggest concern about how marijuana is being viewed by the USCG [federally] and why it bothers me is that if I have traces of it in my system, that can hold for several weeks,” said Jason. “I can be in serious trouble if something happens even if it was two weeks prior when I was using cannabis products.”

Not having a license holds him back in many ways. He cannot charge clients for boat deliveries (which he currently does for free). But the hypothetical nightmare situation is very clear in Jason’s mind. If there is any kind of boat collision, his fault or not, all licensed mariners aboard must immediately consent to a urine test.

“If I have any cannabis in my system, I can be arrested,” said Jason of this scenario. “I can be prosecuted. I can be in serious trouble. For me, I can’t figure out why I’d want to take that risk.” Jason isn’t alone. Although no official numbers on the topic exist, recreational marijuana use is anecdotally widespread among boaters. He shares a story of a fellow yacht broker in Florida who is also a recreational marijuana user. The successful broker allegedly pays top dollar for vials of clean urine that he tucks into his shoe just in case.

“The majority of my friends in and out of the profession on sailboats and other avenues of the boat industry … I would consider them recreational users, or occasionally at a bonfire users,” said Jason. Like Steve, Jason thinks marijuana should be treated like other legal substances such as alcohol or tobacco.

The Law as it Stands

Michael Rose has been a Portland, Oregon-based lawyer since 1975. Rose is an acting law firm partner, and his career includes private practice, public defending and teaching as an adjunct professor at the University of Oregon. “I’m currently on the short track to retirement,” said Rose.

Cannabis law has been in his wheelhouse since the early 1980s when he was a defending lawyer in a possession case. Rose’s argument was simple: a Schedule I controlled substance by federal definition has no medical benefits, but Oregon had approved marijuana for glaucoma treatment and chemotherapy appetite enhancement. “My argument was basically: that’s medically accepted usage, so marijuana can’t be a Schedule I controlled substance,” summarized Rose. “We put on a huge dog-and-pony show in court, got experts down from Seattle, and we lost. I took that up to the court of appeals and we lost that too.”

After that case, Rose was involved in the Oregon legalization process throughout the decades, notably pro-legalization ballot fights, more possession cases, and ultimately acting as a consultant with legalization activists. “I was sort of a behind-the-scenes consultant, and then in 2014, marijuana became legalized [in Oregon]. That’s sort of how cannabis has floated through my career.”.

Rose frames the legal structure for marijuana possession in America with what is known as the Cole Memo released in 2013 by the Justice Department. A key statement within is “the Justice Department is committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.”

The Cole Memo stresses that marijuana is to remain illegal under federal law, but so long as the use of marijuana in individual states is in accordance with state law—and state law is sufficiently rigorous to prevent serious abuses—federal law enforcement was going to take a hands-off approach to enforcement. The DOJ also outlined that their enforcement priorities are preventing distribution to minors, revenue of sales going to criminals, diversion of marijuana from legalized states to non-legalized states, legal marijuana transactions acting as covers for illegal transactions, drugged driving, growing marijuana on public lands, and use on federal property.

“The DOJ did not alter this position during the Trump administration or so far during the Biden administration,” said Rose. “That’s where we sit right now.” Relevant to boaters is the mention of “drugged driving,” which certainly applies to boats as a federal enforcement priority. But from Rose’s perspective, the federal hands-off stance on marijuana possession enforcement is the dominant doctrine of the times.

Enforcement in the Real World

Matt Monahan left the USCG as a Lieutenant with seven years of service at-sea under his belt on waters from Hawaii to Alaska to Puerto Rico. He is insistent that his opinions are his own and not official from the USCG in any way.

“While there will always be room for improvement in tactics and techniques, it is truly incredible what they [the USCG] are able to do with the limited resources they have,” said Monahan. He was a qualified Law Enforcement Officer (LEO) for six years conducting boardings on fishing vessels off Japan and the Bering Sea and drug and migrant vessels in and around the Caribbean and Eastern Pacific.

Despite his participation in drug interdiction operations, his thoughts on recreational marijuana use differs from the official federal stance. “Personally, I believe marijuana fits comfortably amongst other chemical intoxicants such as alcohol, tobacco, caffeine, and prescription narcotics.” Monahan believes that while most credible research shows marijuana use may not directly harm the user, it undoubtedly alters responsiveness and decision-making, which increase risk factors at sea.

“In my opinion, recreational boaters who seek to consume marijuana in conjunction with the use of their vessel must have a solid understanding of its effects, the state and municipal regulations regarding use of marijuana aboard a vessel, and as always develop a safe float plan,” said Monahan.

Monahan explained that the USCG status as a federal military branch differentiates it from other law enforcement agencies boaters may encounter on the water. Unlike a conventional police force, the USCG does not require a level of suspicion to board U.S.-flagged vessels. Statute 14 USC 522 allows the USCG to “make inquiries, examinations, inspections, searches, seizures, and arrests … For such purposes commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States.” These powers are deemed necessary so the USCG can complete its various missions which go beyond standard law enforcement, including search and rescue, anti-piracy, anti-illicit trafficking, and more.

“The USCG’s operational legal team ensures that all LEOs are able to articulate the facts behind their suspicions to ensure they do merit probable cause before a criminal investigation can take place,” explained Monahan. “If a mariner gives a LEO enough suspicion to justify a criminal investigation, a routine safety exam could become a targeted search of the vessel looking for evidence of a possible crime. In my experience, these checks and balances with the USCG legal team help maintain an incredibly high level of accuracy in terms of constitutional rights and privileges.”

Monahan shared a story from when he was the Commanding Officer of the USCG Cutter Richard Dixon. “I had to explain to a USCG lawyer over satellite phone why I suspected a vessel of trafficking cocaine while my Boarding Officer was literally staring at 14 bales of cocaine stacked in the front of an open-topped unlit go-fast vessel 40 nautical miles south of the Dominican Republic. While this is the funny, slightly frustrating reality of at-sea law enforcement, it is the way the USCG polices itself during complex operations with possible international diplomatic consequences if they get it wrong.”

From Steve to former USCG Lieutenant Monahan, all parties agree that skippers must, without exception, be sober operators of their boats. “Having possession of something versus actually being under the influence of something are two very different scenarios,” said Jason. “The USCG should still have the ability to board vessels; they are responsible for our protection at sea.” Jason can’t help but wonder, “I’d be interested to know what would happen if the USCG did find a couple joints in my bag, even if I’m not under the influence, how they would act. My theory is it probably wouldn’t be a positive experience.”

The Cole Memo still encapsulates the current operating legal framework of America with regards to marijuana possession. While the hands-off approach to marijuana from the federal government has allowed states to pursue and enforce marijuana policies of their choosing, it also ensures a perpetual disconnect with the federal government’s stance that marijuana is a Schedule I controlled substance.

But the Cole Memo can also be interpreted as an expressed desire to only pursue marijuana possession when abuses—like impaired boat operation—are flagrant. Bottom line: Law enforcement at all levels have bigger fish to fry.

“The truth is, these days law enforcement agencies don’t want to get bogged down in minor marijuana possession charges,” said Rose, especially in legalized states. Anecdotally, he has not seen a boating-while-stoned case in Oregon with either state or federal agencies involved.

“Our legal system leaves a lot to be desired sometimes, but the important thing to remember is that the USCG works in partnership with state and local law enforcement agencies to achieve the best enforcement outcomes,” said Monahan. “They are not out their looking for personal use quantities of marijuana.”

So, did Steve break the law? Turns out, it is subjective based upon the situational context and the uniform of the law enforcement officer involved. The more robust state-level protections would mean a Washington State Law Enforcement boat on patrol would almost certainly leave him alone without a reasonable suspicion to search the vessel and with the marijuana aboard being a legal substance in their eyes.

A USCG patrol could be completely different when a safety check—which does not require suspicion—turns into a targeted search based upon the internal USCG decision-making. Marijuana found in this scenario would be regarded as a Schedule I drug with similar legal ramifications as heroin possession. The consequences, especially for a licensed captain, could be severe. Marijuana discovered during USCG enforcement activities could result in seizure of property, fines, termination, loss of license, and federal charges.

How does this jive with John Adams’ declaration that our republic is “a government of laws, and not of men”? When it comes to the devil’s lettuce aboard, it’s a purple haze.

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This article originally appeared in the May 2022 issue of Power & Motoryacht magazine.

Source: https://www.powerandmotoryacht.com/at-sea/the-new-rules-of-boating-and-cannabis