June 2020


2020 Enforcement (PART 1): An Overview of Anticipated Cultivation Enforcement Issues

Community,

Although enforcement of unregulated cultivation will likely shake down under the same set of laws as last year, this blog is intended to offer an updated overview of the issues in play this season. To be clear at the outset, it’s likely to be ugly. 

First “abatement letters” will likely continue to be the primary avenue for enforcement this season. Notably, while one can mitigate the possibility of neighbor complaints by being a good neighbor, the abatement letters more often arise from the use of intensive satellite surveillance, sometimes imperfectly

Second, we can expect the National Guard to return to support various local task forces, which often include the Sheriff, agents from the Department of Fish and Wildlife and from the State and Regional Water Boards, and usually flanked by local Code officers. As with the past few seasons, the raids will likely continue to focus on specific watersheds and work their way out using powerful satellite imagery.

OPENING AN ADMINISTRATIVE “CASE”

Any of the agencies involved in a raid can and often will institute their own “case,” meaning one raid can result in several “cases.” For example, the property owner or onsite worker may end up with a criminal case, a DFW case, a Water Board case, and a local Code case. 

Keep in mind that a “case” can be opened by simply mailing or even posting abatement-related notices. Thus, while raids are undeniably scary, this new brand of multi agency raids often result in the same or similar consequences as with abatement letters, i.e. the property will be thrown into environmental compliance and code compliance (“red tagging”), a process which requires engineers, biologists and other environmental consultants, often with costs in the several tens of thousands. 

It is important to note that environmental and code cases are generally considered “administrative,” as opposed to criminal, meaning fines or penalties are often withheld to assess whether a property owner is willing to come into compliance, though they’re all a little different depending on the agency. Here’s a snapshot of the primary agencies’ procedures: 

  • DFW/Water Boards: The environmental agencies will often EACH open a separate “case,” meaning there are three separate agencies coordinating various aspects of the compliance (in addition to local agencies). The environmental agencies usually hold off on imposing fees until they’ve determined whether the property owner is going to “get in compliance” or not. The process of satiating three environmental agencies can be costly and time consuming, but they are also authorized to impose astronomical penalties for noncompliance, so getting in compliance is often the least expensive alternative. 
  • County Code Officers: Code officers will usually “red tag” or “cite” the property for building and related violations of the local code. Counties are authorized to immediately impose fees under a new state statute (Govt. Code 53069.4) that I discussed in last year’s enforcement blog HERE, though many jurisdictions wisely do not and allow 3-10 days for an initial statement of compliance. Instead, most jurisdictions send “warning letters” that threaten massive fines if someone does not come into compliance within the time period. 

The sad result of the current code-related enforcement regime is that it penalizes small family farms while allowing those who are more risk-tolerant to game the system by treating these fines as a mere “cost of doing business.” This inequitable application of the same set of enforcement rules is the primary reason Sarah and I chose to discontinue our administrative defense practice at this time. Please check out Part 2 of this 2-part blog series for more about that decision. 

  • The Sheriff: Sheriff’s deputies evaluate the situation for potential filing of a misdemeanor/felony case, and will be asking questions relating to sales, interstate shipping, and so on. Remember the collective/cooperative law is DEAD, meaning the primary defense for unregulated legacy farmers will be personal use, a defense not available to demonstrably commercial unregulated grows. 
  • National Guard: The National Guard will likely be present this year, offering military-grade surveillance, helicopters, and related support. Keep in mind the National Guard is the only military force allowed to enact war-like response on our nation’s own citizens, and they were most recently deployed to squelch protestors’ First Amendment rights. I am not sure if these issues will bleed over into cannabis, but I do believe the unprecedented use of the National Guard in the last few years is notable and concerning. 

CLOSING THOUGHTS 

Due to the new application of these laws, there is little legal precedent, meaning we can expect significant litigation where individual liberties and unregulated cannabis cultivation intersect. Although we will certainly see new and exciting legal defenses to these types of cases, most folks do not want to be a test case. It is expensive, cumbersome, and is oftentimes a losing battle. 

As always, outdoor/sungrower family farms will take the brunt of seasonal enforcement measures because they are immobile, their lives inextricably linked to the earth on which their farms sit, sometimes for more than one generation. Enforcing on legacy farms is particularly troublesome in light of the state’s three-year eligibility prohibition for anyone who gets cited for unregulated commercial cannabis activity. While I’ve heard tales that the governor and several legacy-producing Counties are developing various grant programs to help bring legacy farms into the regulated fold, these programs won’t be in effect during this growing season.

We are grateful so many trade and policy organizations have made access to the market a primary policy objective because the penalties for unregulated activities are heavy and ever-increasing. If you want to see change in these rules, please support your local trade and policy organizations. Here’s a few of our favorite: 

Stay safe. ~hb

2020 Enforcement (PART 2): Origin Group Law LLP’s Statement on Enforcement Related Services

Community,

Sarah and I have decided to handle the enforcement season differently this year, in that we are referring all administrative enforcement matters to outside attorneys and will not be taking on any new non-emergency enforcement matters this season. While we reserve our right to make exceptions for former cannabis prisoners,  people of color, women and others who have not  had access to the regulated market, we believe our firm’s unique talents are better focused on rebuilding a workable regulated marketplace for California’s legacy producing regions, most notably Nevada County and the Emerald Triangle. 

The last few months allowed us the clarity to realize that neither Sarah or I enjoy working in front-lines enforcement any longer. As there is no shortage of exceptional attorneys who are excited to take on the novel areas of enforcement law in this New World regime, we’re confident this decision does not harm our community due to lack of legal support, and it offers the best allocation of our firm’s talents.  

We will, however, continue to work on enforcement related policy however and wherever we can, which includes supporting CalNORML, the International Cannabis Farmers Association, and our local trade organizations, such as Nevada County Cannabis Alliance and Humboldt County Growers Alliance, if and when we are asked. 

Legacy-producing regions are in the midst of a culture crisis, exacerbated by prohibitionist land-use policies, fire danger, and a pandemic. Some see these as insurmountable barriers to success (for those with access to the market in the first place). However, Sarah and I choose to see this as an opportunity to figuratively burn down the hyper-regulated and environmentally degenerative model of regulated cannabis production enacted by MMRSA in 2015 and to instead demand the enactment of a system that values family farming, radical inclusivity, and regenerative production models. 

We must recognize and admit our industry (and more specifically, California cannabis agriculture) is dominated by white males, many of whom I love dearly and will forever respect as highly ethical businessmen. However, white privilege is often on grotesque display in enforcement work, as the very rules that allow predominantly white males to “blow it up” in the hills (often using undocumented and other marginalized communities as underpaid laborers) are the same rules by which California’s black and brown communities have been criminalized. The indisputable presence of tired economic tropes imposes upon our community a duty to identify and reform or eliminate policies which have historically excluded most of California’s cannabis community from creating meaningful wealth via California’s cannabis industry

Thus, our firm is renewing its aggressive support of a regenerative cannabis ecosystem that includes people of color, women, cannabis warriors, and others who have historically been excluded from the regulated system. More concretely, Sarah and I will continue to provide pro bono and affordable legal services to businesses and organizations that support these missions. We will also increase our free/low cost community education resources where we focus on best business practices and–my favorite–transactions (i.e “deals”). 

Transactions, in my mind, are each unique opportunities to create and maintain long term sustainable wealth for my clients and for our communities. Supporting those who–to date–have not had the opportunity to achieve economic freedom in the infancy of their new enterprises is one of our highest honors. We take our role seriously because we understand the importance of their success in the greater scheme of creating generational wealth where it has not previously existed. 

The importance of transactions to the long term viability of the cannabis farming community becomes even more critical when we consider that these specific transactions are for cannabis, a plant which heals the human who consumes it and heals the earth it was grown in. The plant itself will no doubt be an effective tool in healing the broken economic system in which the plant is currently produced and distributed. 

In closing, we are grateful to have a community that supports our good work over the years, and values our authenticity in how Sarah and I choose to perform it.  

Much respect and please be safe out there. 

Heather and Sarah

#protectourfarmers