Nebraska Attorney General Mike Hilgers has been a vocal opponent of synthetic marijuana, such as Delta-8, and the medical marijuana ballot measures that were overwhelmingly approved by voters last fall. Nebraska Public Media’s Jackie Ourada spoke with Hilgers on his strong marijuana opposition, the ongoing Perkins County Canal fight with Colorado, and what’s next for him as his first term winds down.
Jackie Ourada: You’ve made synthetic cannabis and medical cannabis some of your top targets since being elected as attorney general. What’s your reasoning behind going after synthetic or medical marijuana, even if it’s supported by voters or consumers?
Mike Hilgers: I didn’t run on Delta-8. I saw the shops that are around the state and assumed, like most Nebraskans, that they were filled with products that maybe aren’t good for you, maybe or not, but certainly wouldn’t be illegal and wouldn’t cause all of the harms that we’ve seen. But what I promised Nebraskans was that I was going to build a great team, and we’re going to follow our nose and pick the fights, whether I ran on it or not. And on medical marijuana, there’s really two things to emphasize. Number one, and I’ve been very clear about this even when I was in the Nebraska Legislature, is that I don’t think it’s good public policy, but as attorney general, public policy is not my domain in the same way as it was as a legislator. The domain for public policy, really, is the people through the petition process or the Legislature. But here is my concern as attorney general, and I’ll give you two. The first is I have to defend the Constitution, and the United States Constitution includes a very clear supremacy clause that says the federal law in certain limited circumstances trumps state law. The federal government has said, and has not changed their position, that marijuana is a Schedule 1 drug, which means it has no, according to the federal government, no medicinal upside at all. Highly addictive, leads to lots of downsides. In that world, it has been my view consistently for years, and by the way, the view of this office, even before I became attorney general, that the sale of marijuana — medicinal or otherwise — is is not lawful, and therefore, is unconstitutional. So as the attorney general, my job is to enforce the Constitution. I’ve made that very clear. But the second issue, and the reason why we’re involved in the litigation that we’re involved in, is I am, in some ways, a referee and an enforcer of the election laws of the State of Nebraska. We have to ensure that our elections are run appropriately and correctly, as we should all agree that would be important for us to have. Because especially when it comes to petitions … we have to ensure that, that process that gets to the people for the vote, no matter what the vote is, is done lawfully. And I’ll give you an analogy, if you’re at the end of a game and someone kicks a field goal, and it’s a 60-yard field goal, and everyone goes nuts because it’s going to win the game, and it goes through the uprights, but one of the offensive linemen, or one of the offensive players clearly jumped offsides, or had a false start, or clearly had a penalty, and the ref saw that. Everyone understands that could not have counted. And in fact, it would be a dereliction of duty for that referee to see the penalty and say, ‘Well, I’m not going to call it because I don’t want to. They kicked the long field goal. Let’s just let them have it. I think it is my fiduciary responsibility to Nebraskans to follow the evidence in the law. And what we found, I thought, was worth fighting for. We thought we needed to do it here, and we’re litigating all the way to the Nebraska Supreme Court.
Ourada: The signatures that were thrown out — they weren’t enough. The petition organizers still collected enough signatures to make the ballot.
Hilgers: So we had a trial last fall, and the district court found that not enough signatures had been — the district court agreed with our office and the Secretary of State that certain signatures should have been tossed — and the district court also found, to your point, that not enough signatures were tossed at the district court level for the issue to be taken off the ballot. You are correct on that, we think this is why we’re appealing, that there are errors of law that need to be addressed by the Nebraska Supreme Court, that if we are correct, we’ll actually take the signatures underneath the threshold required to be put on the ballot.
Ourada: You don’t think the Secretary of State’s Office should have cleared the petition to be circulated?
Hilgers: Oh, listen, we got to be very precise. The Secretary of State has something at the very beginning of the process when they look at the petitions and sort of hand them out. I’ve take no position on that. [I] take no position on the initial circulation of the petitions, at the very outset of the process. That’s not something we’ve weighed in on. The next time the Secretary of State has an opportunity to weigh in, is when they certified for the ballot, and the Secretary of State made the best decision that he could have, given the evidence that he had, and he was very clear. He said, ‘Look, I’m going to certify this with the signatures, but it looks like there’s some wrongdoing that we should look into.’ I’m not the elected Secretary of State. I’m not going to second-guess that decision. He made the best decision that he could have. No problem with that. What I’m saying now is, it’s in the hands of the courts. By the way, there is precedent for even if something passes, if it wasn’t this, if they did not follow the correct process to get it on the ballot, even if it passes, that law is as if it was never on the ballot in the first place. And all we’re saying is, at the end of the day, if you want to kick a 60-yard field goal, 65-yard field goal, game-winning field goal, that’s great, but we have to follow the rules. We have to follow the law. It has to be done the right way, or it shouldn’t count — just like that field goal shouldn’t count, in the football context.
Ourada: I read your recent op-ed with Senator Pete Ricketts about encouraging the legislature to not essentially do anything with the law that was passed. Where do you want to see that go forward, just die in the water? Even though voters did overwhelmingly vote to pass it?
Hilgers: There is no obligation the Legislature has to act at all. And if you are being true to the will of the people, what you would say is, ‘We’re going to let the people’s will, that they passed by statute, take into effect. And by the Legislature not acting, that’s all that they’re doing. So if the Legislature does not act, then the people’s statute, which is in effect today, that they voted on, is the thing that’s the law of the State of Nebraska. I could think of actually nothing more directly pure to the people’s will than actually just letting the thing that they passed take into effect and go forward.
Ourada: What’s going on with the Perkins County Canal project? Where’s that going?
Hilgers: There’s been some great reporting from Nebraska Public Media and Fred Knapp on the issue. I can’t say much more beyond what’s publicly there. I will say there’s been a lot of work. I know there’s a lot of work that’s being done on the design process of the state of Nebraska and NDEE. And also our legal teams have been hard at work. You’ve seen some of the public reporting on some of the [eminent] domain of the Nebraska-Colorado compact, the Perkins County Canal Compact, does give us the right of eminent domain in the State of Colorado. You’ve seen some of the landowners’ responses to that. We are going to vigorously defend Nebraska’s rights under the Compact. I mean water and people are our future, and this is a really important source of water for the state of Nebraska. So we’ll see how the next few weeks, months play out. I think if you look historically, and past is not always prologue, but if you look historically, these types of compact disputes usually are resolved in some form or fashion by the United States Supreme Court. So if past is prologue, and I’m not breaking any news here, but if that is so, then I then I think one could project that at some point it’ll get in front of the High Court.
Ourada: Are you ready to fight that multi-year-long battle, if it comes to that?
Hilgers: Absolutely.
Ourada: Who pays for that? Does that come out of your budget?
Hilgers: There [are] two sets. When you say, ‘Pays for that?’ There are the lawyers in my office. So I have an outstanding ag natural resources team. Justin Levine is the bureau chief there. So those are general fund dollars, typically. So that comes out those dollars. There’s no incremental additional cost for their time. There’s outside counsel and expenses. We go to the legislature every two years under [a] normal biennial budget and ask for funds, either cash funds or general funds, to be able to fund our litigation. [In] my very first budget, we asked for funding, and the Legislature gave it to us to be able to bring that fight, and we’ve asked for similar funding in this budget. And I don’t want to get in front of the Appropriations Committee because they haven’t issued their budget yet, but we’re hopeful that the Legislature will continue to back the fight, which they’ve done since I was speaker and brought the initial bill, I believe, in 2022.
Ourada: If this adds up in legal fees… Right now, this is a $600-and-so million project. If this does get dragged on for a decade, can Nebraska afford that?
Hilgers: Nebraska cannot afford to not take the fight. It is an expensive project. There’s no doubt, in terms of the cost of building a design and with inflation and construction costs, it probably will go up by the time it’s done. We should expect it to go up. Certainly, litigation costs are not going to be small as a percentage of the overall cost, probably not very big, but those are not the two numbers, Jackie, that I think are the most important, which is — what happens if we don’t do it? If in 30 years or 40 years or 50 years from now, when all the funding for the design and the construction will have long since passed and litigation will have been long since done, will we have access to that water or not? And how valuable will that water be? And I would bet not an insignificant amount of money that in 30 or 40 or 50 years, no matter what the cost of all this is — and it’s not going to 2x or 3x or 4x — no matter what the cost is, we will thank our lucky stars that we saw the fight all the way through because of the value of water and the quantity of water that will ensure that we get through the protecting of the Nebraska-Colorado compact.
Ourada: What can we see from you and your next term as attorney general, assuming you run and win in ’26?
Hilgers: I don’t think about a second term at the moment, but what voters should expect is that we’re going to continue to double and triple down on the things that we’ve already done, and that the priorities that I’ve already had. Supporting law enforcement. We’re going to have an exciting announcement to make, hopefully in the next week to 10 days, about some of the work that we’re doing to build out western Nebraska prosecutorial resources. I told voters when I ran that defending the Constitution was really important. At the time I ran, it was really federal government. Today, it’s less the federal government and more California or Massachusetts or the state of New York. So we’re fighting those fights. What I want to have is the best pound-for-pound law firm in the entire country prepared to fight those battles that come in ’27, ’28, ’29, and then, I think people should expect that we’re gonna see these fights through. A lot of these fights that we pick are multi-year fights. They take two, three, four, five years to be able to get all the way to the finish line. We’re just sort of in the first quarter for a lot of these fights. And so what people should expect from me is we’re going to see them through to the conclusion.
Ourada: Are you thinking about running for a different office?
Hilgers: No, no, no, no, no. I’m running for attorney general. ’26 feels like a long time away. I wasn’t trying to be coy. I’m running for re-election.
This interview has been edited for length and clarity .
Nebraska Public Media’s Jackie Ourada spoke with Attorney General Mike Hilgers about his strong opposition to medical and synthetic marijuana and what’s next as his first term winds down. Read More
