Monthly Archives: June 2015

SB-643 and the Price of Tuna

Legislators and voters are faced with many questions when it comes to legalizing adult recreational use of marijuana, one of which is how such laws or initiatives will impact the California environment and wildlife. Some reports show that Humboldt and Mendocino Counties have experienced a dramatic increase in deforestation, stream diversion, and harm to wildlife since the passing of the Compassionate Care Act. However, the same studies cited in support of those claims found that the greatest negative environmental impact was from “trespass” grows on federal land. Enforcement of the existing regulations has been spotty, in part because of the questionable legal status of marijuana on the state level from the Compassionate Care Act, as well as the federal level with the Cole Memo.

However, this questionable legal status would in large part be resolved by legalizing adult recreational-use marijuana. With federal enforcement goals as laid out in the Cole Memo, state legalization could shift enforcement to addressing trespass grows rather than busting up dispensaries. Out of fear that the next wave of legalization will have further negative impact on the Golden State’s already fragile environment, one Senator has proposed SB-643, a bill that would provide greater environmental protection and agency oversight into the existing medical marijuana legal framework. SB-643 is broken into several parts; part one would establish a bureau within the Department of Consumer Affairs to manage the regulation and licensing of existing and future dispensaries, which would also manage the appropriation of fees for the purpose of funding environmental protections enforcement, and the violation of which would result in fines up to $35,000; part two would crack down on the current medical practice of prescribing marijuana without proper examination, violation of which would result in criminal prosecution and fines; part three opens the door to local taxation of all levels of the marijuana supply chain; part four criminalizes possession for all non-patients or caregivers, and offers a meager exemption from prosecution those licensed to dispense or cultivate; part five imposes additional taxes to all levels on behalf of the state. Each of these parts creates a new statutory requirement needing additional enforcement. The bill addresses the additional cost to the state and local enforcement agencies by collecting licensing fees, taxes, and fines to fund the enforcement of the provisions.

While at present there are no environmental protections for marijuana cultivation, there are existing regulations that could be applied against those doing the greatest environmental harm. Additionally, we must consider fully any legislation that would re-criminalize possession, as we hardly need to reinstitute drug crimes in a state suffering from severe prison overcrowding, a point which I unfortunately won’t have time to delve into more deeply. What I will ask is whether additional legislation is really necessary? Could market forces or additional enforcement solve the environmental concerns specific to California? Can enforcement costs be passed off to the consumer, rather than paid for on the backs of simple possessors, cultivators and physicians?

To answer these questions it is necessary to review the regulations that are either not currently being enforced, or that, in some cases, cannot be enforced. While the Compassionate Care Act left much of the creation of legal frameworks and the process of enforcement to local county and municipal agencies, it is also true that there are federal and state criminal statutes that could be applied to the marijuana activities that are most harmful to the environment. A great example would be what are known as “trespass grows;” grows taking place on public or private lands without permission from the owner or right to enter.

Because public lands are open to entry by the public, federal agencies are unlikely to pursue action under criminal trespass. In cases where the land falls under federal jurisdiction (think National Parks) the federal penalties for cultivating marijuana are anywhere from five years to life and carry fines as high as a million dollars. Additionally, enforcement of these penalties is one of the eight priorities provided in the Cole Memo, and therefore the legal status of marijuana in the state should not be an issue where the grow is occurring on federal land. With full enforcement under the Cole Memo from the federal side, a large part of the environmental hazards currently threatening California can be resolved.

But what about trespass grows not occurring on federal land? While the Compassionate Care Act (CCA) may have caused a boom in demand for the legal medicinal marijuana market, raising the need for additional supply, it does not in fact prevent enforcement by state agencies of trespass grows. This is true for two reasons; 1) the language of section (d) of the CCA exempts patients and their caregivers from Penal Code § 11358, but does not prevent section 11358 from applying to those not cultivating marijuana on behalf of patients, and 2) were the statutory construction of the CCA to obstruct such a charge from being raised against a trespass grower, the California penal code provides charges that could be brought for the action of trespassing. For example, if California Fish and Wildlife agents were to discover a trespass grow site on California state public lands they could arrest the growers for either a violation of Penal Code § 11358 or for violating Penal Code § 602(p) which prevents the “entering upon any lands declared closed to entry as provided in Section 4256 of the Public Resources Code, if the closed areas shall have been posted with notices declaring the closure, at intervals not greater than one mile along the exterior boundaries or along roads and trails passing through the lands.”

Where does this leave private California landowners who discover an illegal grow on their property? There are two possible avenues to seek legal redress; 1) call the local police or sheriff and report the trespassers as violating Penal Code § 602(l) or (o), or 2) file against the trespassers under the California Civil Code. The second route could be the more dangerous of the two because, in the past, trespass growers have been known to carry arms, which could pose a physical threat of injury, not to mention the financial burden of hiring an attorney. However, the California Code of Civil Procedure allows for the recovery of attorney’s fees for successful trespass actions. While both solutions may not be sufficient to fully protect private landowners from the harm of trespass grows, the truth is that trespass grows on private land are not the primary cause of the environmental harm that is being done.

It’s not clear whether there would be additional action available to private landowners seeking to prevent trespass grows on their land under SB-643. However, for those private landowners who choose to cultivate marijuana on their property, the bill may limit their ability to do so; it had previously included an outright ban on cultivation in areas zoned as residential. This is still reflected in the digest of the bill, leaving open the option to reinstitute the ban. Furthermore, failure to receive a license and pay the associated taxes would be grounds for criminal prosecution or fines in the five digit range. The suggested licensing system, an infrastructure that will be overseen by a regulatory commission created by the bill, would limit which doctors are able to “prescribe” marijuana and also collect associated fees in order to fund enforcement of the regulatory system.

Given that the regulators of the license system would be getting a paycheck as a result of the sale of marijuana this leads to concerns about a possible direct preemption on the part of the California state government, which I won’t go into here. But what works about the bill is that it provides funding to the agencies who will be enforcing the existing regulations and prohibitions. Of all the hurdles facing the Golden State’s environment, funding for enforcement has to be at the top of the list.

But perhaps there’s an alternative method of enforcement for marijuana cultivation? One that wouldn’t require additional funding or new laws. For some products, market regulation is sufficient to prevent environmental harms. When we buy tuna and it says “dolphin-safe” or when we prefer “Non-GMO” ingredients, we are in effect regulating the market and acting as enforcement agencies against the harms we wish to prohibit. While the cost of being monitored and awarded such labels is passed on to the consumer, we are happy to pay ten cents more for tuna we can feel good about. And while there are some consumers who don’t have the luxury of spending an extra ten cents on tuna, the majority of consumers who do influence the market have done so to such an extent that “dolphin-safe” tuna has become the norm rather than a luxury item.

Applying this model to marijuana would require the formation of some regulatory group, but that does not necessitate that the group be a government entity. For example in the area of organic food, there co-exists the U.S. Department of Agriculture (USDA), California Certified Organic Farmers (CCOF) and Oregon Tilth regulatory groups for the receipt of organic certification. Only the USDA is a government regulatory group, whereas CCOF is a trade association and Oregon Tilth is a non-profit entity. Similarly, California Cannabis Voice Humboldt is working to create a non-governmental trade association for addressing the legalization of adult recreational-use marijuana. What if, rather than passing additional regulations and creating more state agencies, non-profit and trade associations were formed for the purpose of certifying and monitoring marijuana grow practices? The result would be market enforcement of what the consumer values rather than placing strict limitations on the California medical marijuana industry, and a “green” marijuana certification process that is not a restatement of the fines and prohibitions of the past.

In my next post I will delve into the particular challenges faced by a drought-ridden California considering legalization of adult recreational-use marijuana, and propose possible solutions to the dilemmas presented.