Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding D.C. No. 8:10-cv-00402-AG-MLG
The opinion of the court was delivered by: Fisher, Circuit Judge:
Argued and Submitted May 6, 2011-Pasadena, California
Before: Harry Pregerson, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Berzon
The plaintiffs are severely disabled California residents. They alleged that "[c]onventional medical services, drugs and medications" have not alleviated the pain caused by their impairments. Each of them has therefore "obtained a recommendation from a medical doctor" to use marijuana to treat her pain. This medical marijuana use is permissible under California law, see Cal. Health & Safety Code § 11362.5(d) (suspending state-law penalties for marijuana possession and cultivation for seriously ill Californians and their caregivers who "possess[ ] or cultivate[ ] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician"), but prohibited by the federal Controlled Substances Act (CSA), see 21 U.S.C. §§ 812(b)(1)(B), 812(c) sched. I (c)(10), 841(a), 844(a).
The plaintiffs obtain medical marijuana through collectives located in Costa Mesa and Lake Forest, California. These cities, however, have taken steps to close marijuana dispensing facilities operating within their boundaries. Costa Mesa adopted an ordinance excluding medical marijuana dispensaries completely in 2005. See Costa Mesa, Cal., Ordinance 05-11 (July 19, 2005). Some marijuana dispensing facilities, including the Costa Mesa collectives, have apparently continued to operate despite the ordinance, but the plaintiffs alleged that Costa Mesa police have recently "raided operating marijuana collectives and detained collective members."*fn1 Lake Forest has also allegedly raided medical marijuana collectives operating within city limits, and has brought a public nuisance action in state court seeking to close them. See City of Lake Forest v. Moen, No. 30-2009-298887 (Orange Cnty. Super. Ct. filed Sept. 1, 2009).
Concerned about the possible shutdown of the collectives they rely on to obtain medical marijuana, the plaintiffs brought this action in federal district court, alleging that the cities' actions violate Title II of the Americans with Disabili- ties Act (ADA), which prohibits discrimination in the provision of public services.*fn2 District Judge Guilford sympathized with the plaintiffs, but denied their application for preliminary injunctive relief on the ground that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.
We affirm. We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines "illegal drug use" by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs' medical marijuana use. We therefore necessarily conclude that the plaintiffs' medical marijuana use is not protected by the ADA.*fn3
Title II of the ADA prohibits public entities from denying the benefit of public services to any "qualified individual with a disability." 42 U.S.C. § 12132.*fn4 The plaintiffs alleged that, by interfering with their access to the medical marijuana they use to manage their impairments, Costa Mesa and Lake Forest have effectively prevented them from accessing public services, in violation of Title II. As the district court recognized, however, the ADA also provides that "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." Id. § 12210(a). This case turns on whether the plaintiffs' medical marijuana use constitutes "illegal use of drugs" under § 12210.*fn5
Section 12210(d)(1) defines "illegal use of drugs" as the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.
Id. § 12210(d)(1). The parties agree that the possession and distribution of marijuana, even for medical purposes, is generally unlawful under the CSA, and thus that medical marijuana use falls within the exclusion set forth in § 12210(d)(1)'s first sentence. They dispute, however, whether medical marijuana use is covered by one of the exceptions in the second sentence of § 12210(d)(1). The plaintiffs contend their medical marijuana use falls within the exception for drug use supervised by a licensed health care professional. They alternatively argue that the exception for drug use "authorized by . . . other provisions of Federal law" applies. We consider each argument in turn.
We first decide whether the plaintiffs' marijuana use falls within § 12210's supervised use exception.
 There are two reasonable interpretations of § 12210(d)(1)'s language excepting from the illegal drug exclusion "use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law." The first interpretation - urged by the plaintiffs - is that this language creates two exceptions to the illegal drug exclusion: (1) an exception for professionally supervised drug use carried out under any legal authority; and (2) an independent exception for drug use authorized by the CSA or other provisions of federal law. The second interpretation - offered by the cities and adopted by the district court - is that the provision contains a single exception covering all uses authorized by the CSA or other provisions of federal law, including both CSA-authorized uses that involve professional supervision (such as use of controlled substances by prescription, as authorized by 21 U.S.C. § 829, and uses of controlled substances in connection with research and experimentation, as authorized by 21 U.S.C. § 823(f)), and other CSA-authorized uses. Under the plaintiffs' interpretation, their state-sanctioned, doctor-recommended marijuana use is covered under the supervised use exception. Under the cities' interpretation, the plaintiffs' state-authorized medical marijuana use is not covered by any exception because it is not authorized by the CSA or another provision of federal law. Although § 12210(d)(1)'s language lacks a plain meaning and its legislative history is not conclusive, we hold, in light of the text and legislative history of the ADA, as well as the relationship between the ADA and the CSA, that the cities' interpretation is correct.
The meaning of § 12210(d)(1) cannot be discerned from the text alone. Both interpretations of the provision are somewhat problematic. The cities' reading of the statute renders the first clause in § 12210(d)(1)'s second sentence superfluous; if Congress had intended that the exception cover only uses authorized by the CSA and other provisions of federal law, it could have omitted the "taken under supervision" language altogether. But the plaintiffs' interpretation also fails to "giv[e] effect to each word" of § 12210(d)(1), United States v. Cabaccang, 332 F.3d 622, 627 (9th Cir. 2003) (en banc), for if Congress had really intended that the language excepting "other uses authorized by the Controlled Substances Act or other provisions of Federal law" be entirely independent of the preceding supervised use language, it could have omitted the word "other," thus excepting "use of a drug taken under supervision by a licensed health care professional, or uses authorized by the Controlled Substances Act." Moreover, unless the word "other" is omitted, the plaintiffs' interpretation renders the statutory language outright awkward. One would not naturally describe "the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law" unless the supervised uses were a subset of the uses authorized by the CSA and other provisions of federal law. The plaintiffs' reading thus results not only in surplusage, but also in semantic dissonance. Cf. Coos Cnty. Bd. of Cnty. Comm'rs v. Kempthorne, 531 F.3d 792, 806 (9th Cir. 2008) (declining to adopt the plaintiff's "tortured reading of the statute's plain text").*fn6
 The cities' interpretation also makes the most sense of the contested language when it is viewed in context. See United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir. 2012) (en banc) ("Statutory interpretation focuses on 'the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.' " (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997))). Here, the context reveals Congress' intent to define "illegal use of drugs" by reference to federal, rather than state, law. Section 12210(d)(1) mentions the CSA by name twice, and § 12210(d)(2) provides that "[t]he term 'drug' means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act." 42 U.S.C. § 12210(d)(2).
We therefore conclude that the cities' interpretation of the statutory text is the more persuasive, though we agree with the dissent that the text is ultimately inconclusive. We therefore look to legislative history, including related congressional activity.*fn7
The legislative history of § 12210(d), like its text, is indeterminate. It is true, as the plaintiffs point out, that Congress rejected an early draft of the "taken under supervision" exception in favor of a broader version. Compare S. 933, 101st Cong. § 512(b) (as passed by the Senate, Sept. 7, 1989) ("The term 'illegal drugs' does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by the Controlled Substances Act or other provisions of Federal law." (emphasis added)), with H.R. 2273, 101st Cong. § 510(d)(1) (as passed by the House, May 22, 1990) ("Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law." (emphasis added)), and H.R. Conf. Rep. No. 101-596, at 2 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 596 (explaining that the House version of the illegal drug exclusion was chosen over the Senate ver-sion). We are not persuaded, however, that this history compels the plaintiffs' interpretation of § 12210(d)(1). Although the expansion of the supervised use exception suggests Congress wanted to cover more than just CSA-authorized prescription-based use, it does not demonstrate that the exception was meant to extend beyond the set of uses authorized by the CSA and other provisions of federal law. The CSA does authorize some professionally supervised drug use that is not prescription-based, see 21 U.S.C. § 823(f) (providing for practitioner dispensation of controlled substances in connection with approved research studies), and Congress could have intended simply to expand the supervised use exception to encompass all such uses.
 One House Committee Report does include a brief passage that arguably supports the notion that § 12210(d)(1)'s supervised use language and its authorized use language are independent. See H.R. Rep. No. 101-485, pt. 3, at 75 (1990) ("The term 'illegal use of drugs' does not include the use of controlled substances, including experimental drugs, taken under the supervision of a licensed health care professional. It also does not include uses authorized by the Controlled Substances Act or other provisions of federal law." (emphasis added)). This discussion is of limited persuasive value, however, because it may rest on the unstated assumption - quite plausible at the time - that professionally supervised use of illegal drugs would always be consistent with the CSA. In fact, the experimental drug use listed in the House Committee Report as an example of the sort of use covered by the supervised use exception is itself CSA-authorized. See 21 U.S.C. § 823(f). There is no reason to think that the 1990 Congress that passed the ADA would have anticipated later changes in state law facilitating professional supervision of drug use that federal law does not permit. The first such change came six years later, when California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996. See Gonzales v. Raich, 545 U.S. 1, 5 (2005).
Although it is true, as the dissent points out, that use of marijuana for medical purposes "was not unthinkable" in 1990, before, during and after adoption of the ADA there has been a strong and longstanding federal policy against medical marijuana use outside the limits established by federal law itself. See id. at 5-6, 10-14 (contrasting California's historical tolerance for medical marijuana with comprehensive federal limits on marijuana possession imposed by Congress in 1970). In 1970, despite marijuana's known historical use for medical purposes, Congress listed marijuana as a Schedule I drug, designating it as a substance having "a high potential for abuse," "no currently accepted medical use in treatment in the United States" and "a lack of accepted safety [standards] for use . . . under medical supervision." Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, tit. II, § 202(b)(1), 84 Stat. 1236, 1247 (codified at 21 U.S.C. § 812(b)(1)). In 1989, the Administrator of the Drug Enforcement Agency (DEA) rejected an administrative law judge's recommendation that marijuana be relisted from Schedule I to Schedule II because of its therapeutic advantages. The Administrator said that "marijuana has not been demonstrated as suitable for use as a medicine." 54 Fed. Reg. 53,767, 53,768 (Dec. 29, 1989). The DEA once again rejected rescheduling in 1992, reaffirming the absence of accepted medical use of marijuana. See 57 Fed. Reg. 10,499 (Mar. 26, 1992). It did so again in 2001. See 66 Fed. Reg. 20,038 (Apr. 18, 2001). In 1992, the Federal Drug Administration (FDA) closed the Investigational New Drug (IND) Compassionate Access Program, which had begun in 1978 and had allowed a few dozen patients whose serious medical conditions could be relieved only by marijuana to apply for and receive marijuana from the federal government. See Conant v. Walters, 309 F.3d 629, 648 (9th Cir. 2002); Mark Eddy, Cong. Research Serv., RL 33211, Medical Marijuana: Review and Analysis of Federal and State Policies 8 (2010). In 1998, Congress passed the Omnibus Consolidated and Emergency Supplemental Appropriations Act for 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998). Under the heading "Not Legalizing Marijuana for Medicinal Use," this provision stated in part, "Congress continues to support the existing Federal legal process for determining the safety and efficacy of drugs and opposes efforts to circumvent this process by legalizing marijuana, and other Schedule I drugs, for medicinal use without valid ...