Shortly after takeoff Oct. 1 2016, Jeff Siegel encountered a problem in the skies over Kansas: His airplane's engine failed, forcing the pilot to make an emergency landing on a road near the small town of Iola.

The Lancair Evolution single-engine plane suffered heavy damage, but neither Siegel nor his passenger were seriously hurt. The Kansas State Highway Patrol, called to the scene, found a briefcase onboard that would ultimately put Siegel on the radar of federal officials.

Inside were three chocolate bars labeled “Lab tested to 100 mg of THC,” a reference to tetrahydrocannabinol—the psychoactive chemical in cannabis.

Siegel soon received a notice from the Federal Aviation Administration saying his private pilot certificate would be revoked. Months later, in February 2018, the FAA's acting administrator issued an emergency order formally revoking Siegel's private pilot certificate. According to the FAA, Siegel had not demonstrated the “degree of care, judgment, and responsibility required of the holder of an airman certificate.”

Siegel was not alleged to have been under the influence of cannabis, and his passenger—now his wife—later claimed she had packed the chocolate bars without his knowledge. He faced a drug possession charge in Kansas that was later dropped.

His challenge to the FAA's penalty is set to come before the U.S. Court of Appeals for the D.C. Circuit on Wednesday morning, in a case that muddles transportation safety rules with the tension between states and the federal government over the lawfulness of marijuana.

Siegel's lawyer, Greg Winton of the Annapolis-based Aviation Law Firm, said the case is the first he's aware of involving the revocation of a pilot certificate over “simple possession” of cannabis, as opposed to trafficking. Winton is set to argue in the D.C. Circuit before a panel of three judges: Sri Srinivasan, Gregory Katsas and David Sentelle.

DC Circuit Judge Gregory Katsas is on the panel that will hear Siegel's case. Credit: Diego M. Radzinschi / NLJ

In court papers, Winton has argued that the FAA ignored mitigating factors—such as the fact that the chocolate bars were purchased legally, “apparently in Colorado”—and went against agency policy with such a stiff punishment. A suspension, Siegel has argued, would better fit the offense.

Winton has also argued that Siegel inadvertently took flight with the cannabis-infused chocolate bars.

“It wasn't intentional. It wasn't deliberate. And it wasn't reckless,” Winton said in an interview. “Suspension is the appropriate sanction, I think, in that circumstance.”

An FAA spokeswoman declined to comment on the case but said the agency “has been consistent in its position that marijuana is a 'significantly impairing' drug with respect to operating an aircraft.”

➤➤  Get the latest cannabis lawyering, compliance and commentary straight to your inbox with Higher Law, a new Law.com briefing. Learn more and sign up here.

Even with the revocation of his certificate, Siegel, a Utah resident who runs his own health and nutrition company, will be allowed to reapply for one early next year. He is pressing his case to avoid having the revocation on his record and go through a full recertification process.

The Justice Department, representing the FAA, has argued that the agency's administrator and National Transportation Safety Board (NTSB) have broad authority to revoke certificates when pilots are found to have flown with marijuana or narcotic drugs onboard. The government's lawyers have noted that, while the chocolate bars might have been purchased in Colorado, federal law continues to prohibit possession of cannabis regardless of where it is bought or consumed.

The NTSB “rightly found it immaterial that the drugs might have been procured in Colorado: regardless of any state's law, 'it remains illegal under Federal law to possess this controlled substance and transport it on an aircraft within the national air space,'” Justice Department attorneys wrote in a D.C. Circuit brief, adding that Siegel's punishment was consistent with the board's precedent.

Under the Trump administration, the Justice Department has adopted a toughened stance—at least on paper—toward state-legalized marijuana. In January, then-Attorney General Jeff Sessions withdrew guidance issued under the Obama administration that called for a hands-off approach to marijuana that was legal under state law.

At the NTSB, Siegel found one official who agreed that a lighter punishment was warranted.

In his appeal of the administrator's emergency license revocation, Siegel went to an in-house judge at the NTSB, where his wife testified that she placed the chocolate bars in the briefcase without Siegel's knowledge.

The judge lowered Siegel's penalty to a 90-day suspension of his private pilot certificate, drawing a distinction between his case and a case two years earlier involving 200 pounds of marijuana that were found on an airplane.

“Guess what the sanction was? Revocation,” the administrative law judge said, referring to the earlier case. “How is that consistent with what we've got here today?”

“This was a simple possession of a substance that was purchased legally, apparently in Colorado,” the in-house NTSB judge said. “There wasn't any use involved. There wasn't any transporting for commercial purposes involved.”

Siegel and the FAA's acting administrator both appealed to the full NTSB, which reinstated the revocation of the certificate.

|

Read more: