In a long fought battle, a Colorado cannabis cultivation operation won its battle against an adjacent property owner when a jury found on Wednesday that the operation of a marijuana cultivation facility did not cause injury to the plaintiff’s adjacent real property.  The plaintiffs initiated the suit pursuant to 18 U.S.C. §  1964, the RICO statute that provides for a private right of action against anyone engaged in a racketeering activities, which includes federally punishable drug activities.  Manufacture, distribution, and sale of marijuana are racketeering activity by definition.

Injury is an essential element of a civil RICO claim.  18 U.S.C. § 1964(c) provides that “any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit.” The Tenth Circuit had previously determined that the cannabis cultivation operation was racketeering activity under 18 U.S.C. § 1962 and that the plaintiffs had the right to a trial to determine whether there were damages to their property.  Both sides provided testimony by experts about whether odors were detectable on the plaintiff’s property and how those odors might impact the value of nearby property.   The jury concluded based on the evidence presented that the operation of the cannabis cultivation did not cause injury to the plaintiff’s property.

The case is Phillis Windy Hope Reilly and Michael P. Reilly v. 6480 Pickney, LLC, Park Walton, and Camp Feel Good, LLC, case no: 1:15-cv-00349 in the U.S. District Court for the District of Colorado.

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