Navigating the High Seas: Fishing and the Changing Landscape of Marijuana Laws

By Winslow Taylor

Between fish whistles, square groupers, and the inherent “leisure” aspect of fishing, it’s no secret that booze and other recreational substances have long since been around the sportfishing scene. I’m not condoning or promoting, it’s just a fact. If you can show me a sportfishing captain/mate who hasn’t seen some absurd behavior, I’ll buy you dinner for a month. Although booze has been legal since 1933, it’s only in the past few years that the political climate regarding marijuana legalization has begun to drastically change.

Medical marijuana was legalized in a few states as far back as the late 1990’s, but it wasn’t until 2012 that recreational marijuana became legal in Colorado. Since then ten states have legalized recreation marijuana, and of those ten states, seven border the ocean or a navigable body of water (Alaska, Oregon, Nevada, California, Maine, Rhode Island, and Michigan).

What does this mean? It means that many folks where marijuana is “legal” are avid boaters/fishermen and hold USCG merchant marine credentials. As a result, many may not understand the ramifications of marijuana’s use on themselves, their license(s), and vessel operation in navigable waters.

Legality of Marijuana

First off, I think it goes without saying, DO NOT USE ANY IMPAIRING SUBSTANCE while operating a vessel (or vehicle). It doesn’t matter if it’s a 9’ tender or a cruise ship – DON’T do it! Not only do you jeopardize your passengers and crew, but also the vessel, your license, your employment, and possibly your freedom. Where marijuana use is state legal, it’s STATE legal. Meaning if you finish up washing the boat in California and fire up a joint, you are not breaking any California laws. Again, don’t operate a vehicle while stoned, but you aren’t breaking any state laws onshore.

The problem is that marijuana is still illegal on the federal level. At the risk of preaching to the choir, the United States Coast Guard is a federal agency that enforces both federal and state laws on the water. It’s important to note that federal law supersedes states law. So, what does that mean?

The answer from the Coast Guard is clear in that marijuana possession and use remains a violation of federal law. If the Coast Guard encounters marijuana in the course of their operations, they will enforce those laws. Federal law states that marijuana is illegal in any quantities and there is no federal exemption for medical marijuana. In short, don’t keep any weed on your vessel, even if you are operating in a state where it’s legal. Once you board your boat you become subject to federal jurisdiction, and even a “small” federal misdemeanor is a much bigger deal that it’s state counterpart.

Unlike on land where law enforcement needs reasonable suspicions to stop or pull someone over (such as expired registration or busted taillight), the Coast Guard has much broader police power. The Coast Guard routinely board vessels to enforce boating safety laws and does not require a warrant to conduct search, seizures, arrests over any United States waterway or high seas.

This encompassing ability to basically search anyone and anything on the water is clearly stated in the law – 14 United States Code Åò 89: The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has  jurisdiction….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… and search the vessel and use all necessary force to compel compliance.

When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested…

It really can’t be any clearer – if you’re going to use marijuana, keep your weed onshore. Additionally, these nuances need to be clearly communicated to your passengers, guests, owner, mate(s), etc. Although you may have a clear understanding of the interplay between state and federal law, you can almost guarantee your party does not! Nothing would ruin a good day of fishing day quicker than an arrest!

Weed and the Professional Mariner

Of course, a captain’s license doesn’t automatically make you a captain any more than a driver’s license automatically makes you a racecar driver. Th ere is no substitute for time and experience on the water. Th e requisite sea time is difficult to accrue, even for the most basic OUPV (“6 pack”) license. Renewals are another headache, as there is always some new hoop to jump through. All that being said, you do not want to put yourself in a position to jeopardize your license.

Anyone holding a Coast Guard license, even if not “using” your license, can suffer repercussions if convicted for a marijuana offense. That means that if you are just hanging out at the sandbar on your skiff and the Coast Guard performs a “safety stop” and finds marijuana, you are in trouble. What they find while enforcing those safety stops can be prosecuted.

Another way to be “busted” is to fail a random drug test or be involved in a maritime accident/incident. If you are just running charters, even part time, you need be enrolled in a drug testing consortium which allows you to be compliant with Coast Guard regulations.

One of the tools used by the Coast Guard to ensure maritime safety is periodic drug testing of certain maritime employees, including anyone with a Coast Guard license or credential. The drug testing program is based on the Department of Transportation criteria which classifies dangerous drugs as: marijuana, cocaine, opiates, PCP, amphetamines, ecstasy, MDA, and MDEA.

If you fail a drug test, by whatever means (random, accident, conviction) your license is in jeopardy. You will, essentially, become a defendant in a United States Coast Guard Suspension and Revocation Hearing (S&R) and the Coast Guard may seek to revoke your credentials. Unless there are extenuating circumstances which create triable issues in a S&R hearing, your license will most likely be suspended for a year pending drug assessments and other substance abuse programs. Once completed your license will likely be reinstated as if you never lost it. If you are ever in this position, I would highly recommend talking with an attorney.

In conclusion, if use or possess marijuana and actively use you USCG license, you are playing Russian roulette with your ability to earn a paycheck on the water. CBD Products Another recent development is the use of Cannabidiol (CBD) oil to treat various ailments. I’m not going to go into the merits of whether CBD oil works as advertised, but for the sake of this article let’s suppose it does.

CBD products are often touted as a natural pain reliever which aid chronic physical pain as well as  PTSD and anxiety. It almost seems tailor made to a full-time captain or mate! Furthermore, for the most part CBD products are completely legal and non-impairing. Although legal, the important question is if someone uses these products, even for a legitimate and lawful purpose, what effect can this play on your license and employment?

CBD oil is extracted from hemp and generally does not contain the mind-altering THC present in marijuana. I use the word “generally” because this is not always the case. The CBD market is a very gray area and there is not much regulated oversite from the production side. Although a product may tout itself as THC-free, that may not truly be the case. Case in point, here is an excerpt from US Drug Test Centers:

“Most hemp oil or CBD products are usually sold with much lower levels of THC (compared to marijuana), so most CDB consumers won’t have trouble passing a drug test.” I don’t know about you, but I wouldn’t want to chance my employment and/or license to “most.” I recently represented an injured worker (non-marijuana user) in a worker’s compensation claim. After his legitimate on-thejob injury, he began taking CBD oil for his pain.

Shortly thereafter the worker’s comp insurance carrier made him take a drug test (per the policy) …my client thought nothing of it – after all he wasn’t smoking marijuana or getting the munchies from the CBD oil. He took the test and registered positive for marijuana.

As a result, he lost his worker’s comp benefits and his job. In short, although legal, if you are in a profession subject to random drug testing, be extremely careful (or abstain) in your use of CDB products. The legality of CDB possession on the federal level is similarly vague. In the 2018 Farm Bill, hemp and hemp-derived products were officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status.

This means that so long as CBD is extracted from hemp and completely pure (without any THC – something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product. Although the chances of prosecution for possession of CBD products may be small (catching the wrong Coast Guard inspector on the wrong day, for instance…), it would be best, like any state legal marijuana, to leave the CBD products onshore.

Conclusion

The evolving legal and political landscape of marijuana is a fascinating scene to watch unfold. But as a professional mariner, until it’s legalized on the federal level, it can have severe repercussions to your livelihood. As it currently sits there are two main takeaways: First, never operate a vessel/vehicle while under the influence of any impairing substance! Second, consider the drug testing protocols and their potential effect on your captain’s license when choosing pain relief or medicinal options, as well as what you bring offshore aboard the boat.

Winslow Taylor is an attorney at Taylor and Taylor who holds a degree from Wake Forest School of Law. He is also a former charter and tournament mate and USCG licensed captain who spent four years charter, commercial, and tournament fi shing throughout the East Coast, Bahamas, and Costa Rica. Licensed to practice law in North Carolina, Taylor’s legal practice includes maritime/admiralty, personal injury, USCG licensing/disciplinary matters, and general business issues. His combination of legal acumen and cockpit savvy, make him the perfect candidate to provide a legal overview for captains and boat owners. If you like what you read and have additional questions, contact Winslow at winslow@t2legal.com.