Measure V and Exemption

Measure V was a voter-approved 2016 local ballot measure that mandated that trees killed by herbicides left standing for 90 days were a public nuisance. The measure was aimed at entities such as Mendocino Redwood Company (MRC) that use the “hack and squirt” process of injecting hardwoods, mostly tanoaks, with herbicides like Imazapyr, to kill them over time. The main objective of Measure V was to stop MRC from using the herbicide through the public nuisance enforcement mechanism.

In a recent letter-to-the-editor, John Andersen, Director of Forest Policy, for MRC and its sister company, Humboldt Redwood Company, explained his company’s position on Measure V.

“The treatment of tanoak to restore the natural balance of conifer to hardwood is a tool used for decades across the county, the country, and around the world. Small private landowners, industrial landowners, and state landowners all use this tool to achieve this goal in a careful and controlled manner according to state regulations. Mendocino Redwood Company additionally seeks Forest Stewardship Council certification for its forest management activities. This third party certification, born out of standards established in the 1990s by environmental groups, has been achieved by MRC for 19 consecutive years … After reviewing state and local laws regarding public nuisance, Mendocino Redwood Company determined it was exempt from public nuisance determinations in regards to standing dead trees.”

Given MRC’s exemption claim, the county sought a legal opinion from the State Attorney General’s Office. After months of dead silence from the AG, two weeks ago the AG’s office announced it would not be rendering an opinion because it was determined it had a conflict of interest in the matter. The nature of the conflict has not been revealed.

So what’s going on here?

Well, it doesn’t take a real close reading of the law to discern that Measure V as it relates to forest products companies, most likely has no application or effect. However, the new ordinance almost certainly applies to private property owners not engaged in forestry or agriculture.

At minimum, Measure V conflicts with two state laws, the Right To Farm Act and the state Forest Practices Act, on their face, seemingly pre-empt a locally enacted ballot measure. Simply stated, Mendocino County apparently lacks jurisdiction to over-ride state law.

And, there’s a lot more in play with this issue, such as politics writ large.

MRC claims its operations are exempt from local ordinances because of the California’s Right To Farm Act that specifically designates its forestry activities as “agriculture.” According to the act, “the term ‘agricultural activity, operation, or facility, or appurtenances thereof’ shall include, but not be limited to, the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural commodity including timber …”

Historically, the right-to-farm law seeks to protect qualifying farmers, ranchers, timber operators, etc. from nuisance lawsuits filed under local ordinances. That was the specific intent and purpose of the Right To Farm Act.

Also it’s MRC’s position that the county lacks general jurisdiction on the public nuisance issue because the Public Resource Code and California Forest Practices Act trumps local ordinances. Again it’s the argument that state law pre-empts and supercedes local ordinances.

Finally, you can’t ever eliminate the role that politics plays in these matters.

The Fisher family, which owns MRC, are influential Democrats with Bay Area ties to Gov. Gavin Newsom. The Fishers are among Newsom’s oldest and most loyal supporters and campaign contributors. Wouldn’t be surprised at all if their problem here in Mendocino County with Measure V hasn’t come up in some fashion over cocktails and dinner at the Governor’s Mansion.

(Jim Shields is the Mendocino County Observer’s editor and publisher, and is also the long-time district manager of the Laytonville County Water District. Listen to his radio program “This and That” every Saturday at 12 noon on KPFN 105.1 FM, also streamed live: http://www.kpfn.org.)

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