Author Archives: Kendra Livingston

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.

Gambling with Tribal Marijuana

For this post I will look at the application of state criminal jurisdiction to non-tribal members while on tribal lands; first at the jurisdictional framework in general, and then at a brief history of federal Indian gaming regulations to better understand the legal limitations of tribal marijuana cultivation. In my last post I discussed Federal Public Law 280 (PL-280) and the delegation of criminal jurisdiction over tribes and their members to state agencies and courts. State criminal jurisdiction does not apply to tribal lands where the alleged crime is regulated—and not strictly prohibited—by states. This raises the question: Does state criminal jurisdiction under PL-280 extend to the activities of non-members of the tribe while on tribal lands? For example, if a tribe opens a “cannabar” for non-tribe members to purchase and imbibe marijuana while on tribal lands, would the actions of those non-members be within the criminal jurisdiction of California, the U.S., or the tribe? The answer to this question depends on whom we ask. The current U.S. Supreme Court case law and lower court statutory interpretations find that federal criminal jurisdiction (or state criminal jurisdiction in PL-280 states) over non-members extends to their activities on tribal lands. Which, continuing from the earlier example, non-members would be subject to federal or state criminal jurisdiction for acts committed on tribal land, and could be prosecuted for violating the state or federal law by purchasing marijuana for recreational use at a cannabar located on tribal lands. But a group of constitutional theorists argues that these activities are beyond the reach of state, and perhaps even federal, criminal jurisdiction in PL-280 states. What does this jurisdictional quagmire mean for tribes seeking to sell marijuana to non-tribal members for use on tribal lands? Is “casino”-style marijuana consumption and sale possible?

Does PL-280 extend state criminal jurisdiction to activities of non-members while on tribal lands? In Oliphant the U.S. Supreme Court ruled that tribal criminal jurisdiction does not apply to non-members, noting that “[n]on-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers.”  Mark Oliphant was a non-tribe member residing on the Suquamish reservation in Port Madison, Washington. During the tribe’s annual Chief Seattle Days celebration, Oliphant was arrested by tribal police and charged with assaulting a tribal officer and resisting arrest. He was arraigned before a tribal court, and after bailing out; he filed for a writ of habeas corpus in Ninth Circuit relying on the claim that the Suquamish court did not have criminal jurisdiction over non-members. The Ninth Circuit found in favor of the Suquamish, and Oliphant appealed to the Supreme Court. The Court found that tribal sovereignty is not strictly geographical, and thus the tribal court’s criminal jurisdiction does not automatically extend over non-members while they are present on tribal lands. Rather, non-members are subject to the federal (or in PL-280 states, the state) statute that would apply if the crime had been committed outside of tribal boundaries. The Court did not question the tribe’s power to arrest, and in fact found that the tribal agencies must turn over and “not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” It also noted that the basis for this policy was to provide protection for tribal members “from the violences [sic] of the lawless part of our frontier inhabitants,” or to put it another way, to protect the American Indians from non-members entering tribal territory and committing what would be considered crimes by the federal government had it occurred on non-tribal soil. Oliphant further elucidated that tribes have sovereignty over their members, and the right to assert jurisdiction where no Congressional jurisdiction has been asserted (or asserted and then delegated to states via PL-280).

Cohen’s Handbook of Federal Indian Law, the preeminent source for understanding the intricacies of U.S. tribal law, also lends clarity to the convoluted point of tribal jurisdiction over non-members while on tribal lands. Citing Oliphant as authoritative precedent, Cohen’s Handbook notes that even a regulatory PL-280 state law, which would normally not be enforceable in Indian territories, may be enforceable on tribal lands where it “affects non-Indians and survives the Court’s infringement/preemption test.” The test, as explained by the Court in Mescalero Apache Tribe is that “if [the state regulation] interferes or is incompatible with federal and tribal interests reflected in federal law [it is preempted], unless the state interests at stake are sufficient to justify the assertion of state authority.”

There are some critics that question whether the federal government acts within the scope of its constitutional powers by delegating inherently federal jurisdiction to states; an issue which has never been addressed by the U.S. Supreme Court in regards to the application of state law to tribal lands.

The lower courts that have addressed this issue have set aside the issue with minimal or circular analysis. In Anderson, James Anderson, a member of the Klamath tribe residing on the Klamath reservation, appealed his conviction of second-degree murder in Oregon state court to the Ninth Circuit. He appealed to the Court on the basis that Oregon state courts did possess criminal jurisdiction in this case as the homicide had occurred on Klamath land, and the defendant is a member of that tribe. The Ninth Circuit did not agree, and found that, “[t]he [Congressional] power over Indians was deemed not so inherently or exclusively federal as to apply beyond the extent to which the federal government has preempted the field, and the federal government could thus withdraw from the field and turn the subject matter back to the states when it chose to do so.” However, the presumption that the states possessed original jurisdiction over tribes, and that the federal government had preempted the state powers on those lands, is unsupported by statute, treaty, or constitutional amendment. Tribes, recognized in the U.S. Constitution as falling under the same umbrella of federalist powers as states and foreign countries, never entered into treaties with state governments to cede jurisdiction, but rather made treaties with the federal government to cede their jurisdiction in a limited manner. As Cohen’s Handbook notes, “[U.S.-Indian t]reaties must be understood as grants of rights from Indian people who reserve all rights not granted.”

The false presumption first promulgated in Anderson was relied on in other cases reviewing the PL-280 for its constitutionality. In Agua Caliente the District Court noted that, “Public Law 280, like other similar laws in recent years, is a withdrawal by Congress from its preemption in this field. It has done so in this case by express grant to the state of authority…to the extent that any further withdrawal by the Federal Government occurs, the sovereignty of the state becomes enlarged to that extent.” Again, there is no existing evidence or support of this presumption, except that this is the relationship between federal powers and state jurisdiction outside of tribal lands. The express purpose of federalism is for federal jurisdiction to extend to “certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” But this only exists where original state jurisdiction would otherwise exist. Keeping in mind that this issue has never been argued before the Supreme Court, it is possible that the Court would find in favor of the federalist principles, and rule that where the federal government has withdrawn from a jurisdiction, the sovereignty of tribes would become enlarged to that extent.

How does this relate to marijuana sales on tribal lands? Which criminal jurisdiction applies on tribal lands matters to non-members seeking to imbibe or purchase marijuana from tribe-operated dispensaries? Under the majority view, it appears that non-members cannot commit acts on tribal lands that are considered crimes in state or federal court. This is due in part to existing statutes and Supreme Court decisions, and seems to be the most largely accepted interpretation of the law. However, a splinter group of theorists among the minority view argues that the federal government cannot delegate its criminal jurisdiction to states. Under one interpretation of the principles of federalism this could mean that where the federal government has withdrawn from the field of criminal jurisdiction (i.e. via attempting to delegate this power to states) that jurisdiction is restored to the tribes. The tribes would have the criminal jurisdiction that would otherwise be granted to the states under PL-280, and could determine whether non-members could purchase or imbibe marijuana on their land. Of course, this is not a view supported by the existing case law, but since the Supreme Court has not addressed the question, it remains an argument to be made.

When first hearing of the interaction between PL-280 and the CSA for tribes, it may seem natural to conclude that the state criminal jurisdictional exception extends to non-members in such a way that “casino”-style marijuana sales (i.e. tribal dispensaries providing marijuana for on-site consumption by non-members) seem inevitable. To better understand why this not the case, an examination of the history of American Indian gaming is necessary. From the outside, it may seem a rather straightforward matter; tribal sovereignty in conjunction with PL-280 allows for casino and gaming in states that do not completely prohibit gaming (i.e. operating a state lottery). However, the power to organize casinos and gaming on reservations is still within the jurisdiction of the federal government. This is because the Federal Indian Gaming Regulatory Act of 1988 (IGRA) re-asserted federal jurisdiction to regulate the conduct of gaming on Indian Lands, established the National Indian Gaming Commission (NIGC), as well as a regulatory structure for Indian gaming in the United States, essentially closing the jurisdictional loophole left open under PL-280 by the Cabazon decision.

Based on Cabazon, which held that in PL-280 states where gaming is a regulated activity and not a prohibited activity (e.g., states with a state-operated lottery), tribal gaming was determined not to fall within the state’s jurisdiction to regulate. The Court further elucidated that only Congress “could effectively place limits on the Indian Gaming industry.” For precedential support, the Court relied on the Mescalero Apache Tribe preemption test mentioned earlier in this post. Within a year of the Cabazon decision, Congress passed the Indian Gaming Regulation Act (IGRA). The stated purpose of the IGRA includes the establishment of Federal Regulatory powers over Indian gaming and a Federal commission to oversee and apply such powers (NIGC). Cohen’s Handbook notes that although the IGRA does not mention PL-280, it operates to supersede state jurisdiction because it is a more recent statute asserting exclusive federal control over violations of Indian gaming. Under the IGRA, tribes are required to enter into compacts with the states in order to participate in Class III gaming, which includes all gaming not covered in Class I and II, specifically anything not closely resembling bingo or “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies.” Tribes retain jurisdiction over Class I and Class II gaming; subject to any “prohibitive” limitations placed by states (very similar to the tribal jurisdiction limitations mandated by PL-280).

In those states where tribes have sought Class III compacting agreements, the state has not granted criminal jurisdiction as a result of the IGRA legislation, rather states have a per se veto power over Indian proposed regulation of such activities, as iterated in
§ 2710(d)(3) of the IGRA:

“Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities.”

The IGRA included a provision for tribes to file suit in U.S. District Court against states failing to enter into negotiations or that negotiate in bad faith these compacts with tribes. However, in Seminole Tribe the Supreme Court ruled that this provision was not within the constitutional power of the federal government, and that states were immune to suit by tribes under the Eleventh Amendment. Despite the fact that the language of the IGRA seems to be a broad grant of jurisdiction to the District Courts over suits brought by Indian tribes against States that had not consented, the language was held as “insufficient to constitute a clear statement of an intent to abrogate state sovereign immunity.”  Thus, tribal sovereignty was limited by the passage of the IGRA, but state sovereignty (under the Eleventh Amendment) was not.

This is important because there has been some recent discussion of state legislation in Washington essentially re-asserting state jurisdiction over marijuana cultivation or sale on tribal lands. However, any resulting legislation would be open to legal challenge. This is because while the federal government can re-assert federal jurisdiction via federal statute in states where PL-280 applies, such as it did with the IGRA, the principles of federalism do not allow for states to assert their criminal jurisdiction without direct delegation by the federal government. Those states either have criminal jurisdiction over drugs (where that drug has been strictly prohibited) or they don’t (where there is existing regulatory state legislation). In PL-280 optional states, or states that were offered the opportunity to claim state criminal jurisdiction under PL-280, but were not mandated to accept that jurisdiction, such as Washington, Arizona, and Montana, further analysis is necessary to determine whether PL-280 is applicable. Several of these optional states have state constitutional disclaimers that prevent PL-280 from applying (according to the McClanahan decision), and cannot claim criminal jurisdiction until these constitutional disclaimers were nullified. Cohen’s Handbook notes, “[i]f a state has not assumed jurisdiction under Public Law 280, it may not acquire jurisdiction over Indians independent of that Act.”  This is especially true in Washington, which is blocked from fully asserting criminal jurisdiction over tribes by its own constitutional disclaimer, and so would lack PL-280 jurisdiction on two counts; first it would lack jurisdiction under PL-280 because it has not fully assumed that jurisdiction, and secondly, because if PL-280 were to fully apply, the state regulates but does not prohibit marijuana sales and cultivation, and so would not have jurisdiction over the tribes that chose to engage in those activities.

As recently as March of this year, tribes were granted the ability to prosecute non-Indians for certain crimes under Special Domestic Violence Criminal Jurisdiction, including criminal violations of protective orders. While this federal action may partly overturn Oliphant, it is not clear whether this opens the door for greater tribal jurisdiction over crimes committed on reservations. If it did and tribes were able to determine for themselves what recreational drug use was allowed on their lands by non-members, the risk of investing in the marijuana industry would be largely alleviated.

Why Tribes Don’t Need Your Permission

Late last year the U.S. Department of Justice made an announcement that American Indian tribes may grow and sell marijuana on tribal land so long as they adhere to the federal conditions required of states that have legalized marijuana, and with the consultation of the local U.S. Attorney’s office. As a result of the announcement many tribes, including the Pomo and the Red Lake Band, are seeking to implement a regulatory framework that would adhere to those federal conditions. Others have voiced concern that the vague wording of the DOJ memo will leave tribes vulnerable to prosecution on the federal, state or county level. But what if California tribes did not need the permission of the federal government to cultivate marijuana without the threat of criminal prosecution?

The United States Supreme Court has recognized an exemption for tribal lands from the application of state law. For example, in Washington v. Confederated Tribes of Colville Indian Reservation the Court held that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.” However, where Congress has delegated this power to states, state law would be enforceable on tribal land.

Under Public Law 280, the federal government delegated criminal law enforcement to California and a handful of other states, making the state penal code enforceable on tribal land. This rule is subject to one caveat: if the state generally permits the conduct at issue, subject to regulation, it must be classified as a civil or regulatory charge, rather than criminal, and thus PL-280 would not authorize its enforcement on an Indian reservation. Furthermore, the definition of generally permitted conduct is extensive. The Supreme Court held in California v. Cabazon Band of Mission Indians that “even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted” from application on tribal land. One possible conclusion is that by regulating marijuana, even for medical purposes, California has preempted state or county marijuana laws from applying to tribes.

Tribal law still applies, of course. And some tribes have strict anti-drug policies, which may be enforced by tribal police on those lands. However, those tribes that are within the borders of a state with PL-280 in effect would be able to independently determine how to regulate marijuana without the need to invoke the protection of the recent memo. What this means is that for tribes seeking to benefit from the restrictive nature of the marijuana market the fear of criminal prosecution can be at least somewhat alleviated (however, this blog post does not constitute legal advice; anyone seeking to take action must consult with a licensed attorney).

In my next post I will be considering whether PL-280 would also allow for “casino-style” recreational marijuana use, or the use by non-tribal members while on tribal lands, and if so, whether what the ramifications of such use would be.

Sending up Smoke Signals


Kendra Livingston
J.D. Candidate, 2016

I will be analyzing federal environmental and land use issues as they relate to state and tribal sovereignty. My first post will focus on the existing treaties between American Indian nations and the federal government as pertains to the regulation, sale, and cultivation of marijuana on tribal lands. I will focus on whether a tribal regulatory framework, carefully considered and crafted, would be above the reach of the Controlled Substances Act. Then I will be turning to the topic of water and resource utilization as it relates to the juxtaposition between federal and state marijuana regulation, especially in states where the agricultural industry is prevalent and water is scarce. I will also consider how state legislation or initiatives regulating or legalizing marijuana could be drafted to limit negative environmental impact.

As a second year law student and International Comparative Law Certificate candidate I am able to provide analysis of, and creative solutions to, the issues presented by drug law and policy. During my travels with the Santa Clara University School of Law, I have experienced the legal frameworks and researched national drug policies for both Cuba and the Netherlands. This summer I hope to take classes in Australia and develop an understanding for the policies utilized by that government in drug and substance abuse management. Last semester I was excited to be able to participate in the Drug Abuse Seminar taught by former Santa Clara Law Dean, Gerry Uelman, which advocated an end to the “War on Drugs” and more humane treatment of drug offenders. I am particularly interested in the environmental implications of California regulation (and possible legalization) of marijuana. Post-bar, I plan to work drafting policies to help put an end to the federal government’s controlled substance scheduling of marijuana.