Supervisor Hamburg was all ears, energized at the end of a long meeting day on Tuesday, April 24th. This consent calendar item roused Hamburg: "The Board has consistently taken policy positions on issues addressing illegal marijuana cultivation on public lands. … On February 24, 2012, AB 2284, a bill to prevent and mitigate marijuana cultivation on State land, was introduced by Assemblymember Wesley Chesbro, and subsequently assigned to the Assembly Committee on Water, Parks, and Wildlife; and the Committee on Public Safety. AB 2284, as written, would authorize law enforcement officers to investigate drivers transporting agricultural irrigation supplies through resource land, giving law enforcement more tools to prevent, investigate, and clean up illegal grow sites. Marijuana cultivation on state land has increasingly become a problem throughout the state, especially in Mendocino County. The Mendocino County Board of Supervisors has consistently advocated to support measures to address illegal marijuana cultivation on public and private lands, for the safety of our constituents and law enforcement officers, and for the protection of our environment...."
At the April 17th Sacto meeting, eight persons had spoken in support of the bill, among them Sheriff Allman; Mike Jani, chief forester for the Mendocino Redwood Company; and Madeleine Melo, widowed last year when her husband, Jere Melo, was murdered in the woods north of town by a deranged young man growing opium poppies on property managed by Melo.
“I have concerns," Hamburg began, "about a letter going out over your [Supervisor McCowen’s] signature in support of this bill. I'm a little confused by this thing I got over lunch, which I got from Kristy [Furman, Deputy CEO].... This memo I got over lunch says in the event that the General Government Committee — can you explain this memo?”
Furman: “Yes. I had notified the board last week that staff had transmitted this letter that would be brought forward for ratification pursuant to our legislative policy. You had expressed concern with that process. So I wanted to make sure you had a copy of the County policy in the event that may be that something that you haven't seen. So I provided that to you.”
Hamburg said that "In general I don't have a problem with the current policy. Specifically, with respect to the Chesbro legislation, I do have concerns. Looking at the one pager where it talks about the civil penalties, 30% going to the DA, 30% going to the lead investigating agency, is that the MCSO (Sheriff)?”
Furman: “If that were the jurisdiction under which this bill would be applicable.”
Hamburg: “And 40% to the cleanup agency. Who is the cleanup agency?”
Furman: “Environmental cleanup should there be damages based on the illegal cultivation of applicable substances.”
Hamburg: “So would that be like our Environmental Health Department?”
Furman: “If there was a role, or I think it would be state reimbursement to the state agencies; whoever’s jurisdiction it falls under.”
McCowen: “Perhaps before we go further can we get a very brief synopsis of what the bill provides for for the benefit of anyone who might be watching at home.”
Furman: “Sure. The bill –“
McCowen: “Supervisor Hamburg, you can certainly do that too.”
Hamburg: “I can just — AB 2284 Chesbro allows local law enforcement as opposed to the CHP, although it may include the CHP, to pull over and question drivers transporting agricultural irrigation supplies through resource lands. So that's one part. The second part is that it adds additional civil penalties to violators of specific Fish and Game codes which pertain to water diversion, garbage, what else? [Pages through binders.] I actually do have all that information here. ‘Garbage, motor vehicles, rubbish, litter, refuse, waste, debris, viscera’ — what else? ‘Unlawful to deposit or permit to pass into the waters any of the following…’ So that's the one about illegal things going into the watercourses. One of the Fish and Game code sections has to do with ‘diverting or obstructing the natural flow or substantially changing or using any materials for bed channel…’ and you can read all that that's in section 1602.
McCowen: “Let's be clear also that back where you said it would authorize Highway Patrol and County sheriffs to inspect these loads, my understanding of the bill is that that would only be within the boundaries of the state park, state forest or federal forest.”
Hamburg: Right. “I was going to get to that.”
McCowen: “Or on timberland and how that’s defined and that would be private timberland. So it's not something that would apply to someone driving down the highway is my understanding.”
Furman: “This has gone through two committees and Assemblymember Chesbro continues to describe this as a work in progress concerning the definitions and the applicability and the definitions of timberland and what it can be applied to, acreage of 50,000 or more, whether private landowners could opt in to be covered by the provisions of the bill. So he describes this very much as a tool for law enforcement recognizing that continuing work needs to be done on the definitions.”
Hamburg: “Timberland, in Government Code section 51104 means ‘privately owned land or land acquired for state forest purposes which is devoted to and used for the growing and harvesting timber or for growing and harvesting timber and compatible uses which is capable of growing an average annual volume of wood fiber or of at least 15 cubic feet per acre!’ Which is an extremely small amount, right? Fifteen cubic feet per acre, that's just a few trees. Per acre. So that does make the application pretty broad. So let me just go on with this. So I'm looking at the California legislative information and first of all I see that under existing law the CHP can stop any vehicle for transporting — this is huge, that was shocking to me to begin with! That the CHP can ‘stop any vehicle transporting timber products, livestock, poultry, farm products, crude oil, petroleum, inedible kitchen grease…’ I mean!”
McCowen: “You can’t be too careful.”
Hamburg: “That amazed me! And I'm amazed that in this free republic of ours that the CHP can stop people virtually anytime they want. But anyway, getting to this bill. This bill authorizes a member of the CHP or the sheriff or a deputy to stop a vehicle transporting agricultural irrigation supplies as defined that are in plain view within the boundaries of a state park, state forest or federal forests or on timberland. The ‘or on timberland’ is a problem for me because I think timberland is so ill-defined. You know, is it forestland? As per that definition I just supplied which is 15 cubic feet per acre of wood which could be anybody's little, anybody's backyard practically. And then the other concern I have is when you go to the sections that deal with the increased fees on the violations. Now, section 1602, section 5650 section 5652 — all of these sections already impose penalties for dumping garbage in a stream, diverting or any of the things I've mentioned previously. But to jack those fees up and these are pretty significant increases, I think I understood section 5652 is currently a $25,000 fine. This jacks it up to $40,000. I think that’s the same with 5650. Because this is a marijuana related offense. So we’re saying — we’re saying — it's a very bad thing to do these things. I totally agree with that. But why when it's a marijuana cultivation offense as opposed to somebody diverting for any of a number of other reasons and we know there are literally hundreds if not thousands of water, illegal water diversions in this County. Why when it’s related to marijuana do you close to double the penalty? I mean, what makes it so much more heinous to do it if it's in conjunction with a marijuana grow as to opposed to in conjunction with a, with a vineyard! Or with any of a number of other reasons people might divert water or might leave garbage lying around or, you know, I just don't see the equity in that.”
Let’s see if we can answer Supervisor Hamburg’s puzzlement:
1. Pot cultivation is illegal (unless you can prove it’s for a legitimate personal medical need or for a “compassionate” (i.e., non-profit) purpose.
2. Trespassing is illegal.
3. Diverting water or dumping trash on someone else’s property is even more illegal than doing it on your own property. Would Supervisor Hamburg like it if some tweaker decided to build a meth lab on his property? Would he want them treated like a grape grower who happened to plant some vines on the wrong side of the property line?
Hamburg continued: “So I guess in sum I'm not very enthusiastic about the Chesbro bill. Mr. Chesbro has been in Sacramento for almost a dozen years as a legislator and this is the first time I’ve seen him venture into the area of marijuana at all. I don't really see the efficacy of this bill...... I think we know from the discussion we had about Take Back Our Forest that there's at least two members of the board who take a different approach on these issues, unconvinced that just because you make more penalties you’re going to deal with the marijuana cultivation problem. I don't subscribe to that view. So I'm not enthusiastic about 2284. I would not have supported it. I would not support the Board backing it and I didn't like the fact that I didn't get to express that before a letter of support was sent out by the board. So that's pretty much my comment.”
McCowen: “Our adopted legislative platform, which I believe the Board supported unanimously, states in part that ‘instances of illegal trespass and violent crimes place our residents, visitors and law enforcement officers in extreme risk. The county supports measures to combat the impacts of these illegal activities within Mendocino County. The County will advocate for solutions to stem the amount of illegal marijuana plantations in forested areas including working with the board of forestry and other regulatory entities in resolving this problem.’ "So I believe that the bill presented by Assemblymember Chesbro is directly in line with our adopted legislative policy. I had no qualms whatsoever in signing the letter. I would sign it again tomorrow or next week or the week after or any other bill that offers any realistic option for addressing illegal trespass grows on public or private land without the owner's consent. "Again trespass grows: I think this bill is clearly intended to do that and as far as I know, as first brought forward by Supervisor Pinches with regard to some kind of checkpoint system for the Mendocino National Forest. The National Forest is beyond the purview of the state legislature, but it's a step forward. We know we certainly have plenty of problems within our state forest and state park system and private timberlands. So I'm fully in support of this measure. The issue before us is for ratification of the letter that has already been sent. If the board does not stand behind the letter, we will find that out shortly. But I believe it is consistent with our adopted legislative platform which did have unanimous support.”
Hamburg: “I just want to say in response to the Chair’s statement that based on the legislative platform, and I did vote for the legislative platform, I worked on the legislative platform, I can certainly understand why you signed the letter. I have to say also that it kind of took me by surprise because I did not know that this was the direction that Chesbro was going. I did have a conversation with Wesley a couple of months ago where he said he was coming up with some bills that he thought would help deal with the problem of illegal grows. My main concern about this though really is not in state parks, the state forests or the federal forestland. It's the timberland. And the lack of a definition of where this will be enforced and the — if not the likelihood, at least the possibility that it can be abused and that citizens of Mendocino County will be forced to pull over when they are carrying legitimate parts of what, you know, thousands of people engage in in Mendocino County. I don't believe there should be specially severe penalties for violations of Fish and Game code sections based on why you are diverting or why you're trashing. I think it's bad if you are diverting or trashing. But I think the penalty — the act is the same and the penalty should be the same whether it's marijuana, whether it grapes, or whether it's tomatoes. It's the crime and the severity of the crime that is being punished and I don't like creating a special category of crime for marijuana. It's like when I think until Obama became president for a long period of time penalties for crack cocaine were much an excess of penalties for cocaine. Those kinds of delineations because we decide that we especially don't like people who use crack, well here we are saying we especially don't like people who are engaged in marijuana as opposed to people who are engaged in other illegal acts or connected to other crops or other activities. So anyway I can see that the Board is in favor of this and I will just cast my no vote.”
Supervisor Kendall Smith suggested that Hamburg send a letter to Chesbro himself, expressing his concerns.
Supervisor Carre Brown pointed out that timberland is typically defined by soil type.
Hamburg: “Well, you just make my case for not supporting this. I mean, it’s extremely vague. State forest isn’t vague and federal forest isn’t vague. But ‘timberland’ is just an undefined term. It's going to allow anybody who happens to be traveling with a little, you know, half inch pipe in the back of their truck, or you know, a few pipe wrenches are going to be eligible to be stopped by a deputy! This is what I don't like. This is just kind of law enforcement-creep.”
Supervisor Brown said that she is held accountable if she transports livestock without a properly signed permit.
Hamburg: “If you are transporting a bunch of pipe, what's to say you are not going to have your little bill of sale from Friedman’s? Okay, I just went and bought that pipe and now I'm going to grow my dope on the federal forestland. Or wherever. I mean — I don't know. It just seems to me to be full of holes. I have no further comments.”
McCowen: “If some version of this becomes law, you will want to have your bill of sale with you if you are rambling around out in the state forests or state forests or private timberland. And let's be realistic, this is — and the bill’s terms are going to be defined as it goes forward, but I believe the intent is primarily to apply to industrial timberlands that often are not adequately patrolled as a private holding might be. And as this evolves forward it might involve some form of registration by the timberland owner in order to be eligible, so this will be thoroughly discussed going forward. But I am in favor of anything that potentially offers an effective tool for law enforcement to interfere with the illegal, trespass cultivation of marijuana on public or private land. And that really is the point at issue.”
Hamburg: “And you are in favor of an 80% hike in the penalty?”
McCowen: “Final round of comments!”
Hamburg: “Based on it being marijuana?”
McCowen: “That was the final round of comments and you had yours. And we are going to give Sheriff Allman the last word on this subject before we vote.”
Sheriff Allman: “Good afternoon and thank you. I was in Sacramento last Tuesday when the Public Safety Committee chaired by Assemblyman Ammiano listened to this addressed and asked questions. While I can see some people being concerned about where this legislation might be going, I want to clearly state that the testimony I heard and the testimony I gave was directed towards public lands, was directed towards reducing the amount of garbage that we have on public lands and working with the state legislature to enact civil fines as well as increasing probable cause possibility that law enforcement will have when we see people that are absolutely committing a crime. I correlate this to law enforcement’s ability to stop people in the holiday season when they are transporting Christmas trees. We can stop them for the purpose to see if they have, if they are coming out of the national forest, if they have a Christmas tree permit. During hunting season if they have a buck, law enforcement has the ability to stop and make sure the buck is properly tagged, and airports certainly screen citizens to make sure they are not carrying guns onto airplanes. All these are preventive techniques, and Senate Bill 2284 is exactly that, a preventative technique that is going to allow us to focus on the people who really and truly created the damage that we saw last year during Operation Full-Court Press. I don't need to remind you of the statistics. You know those as well as I do. And they make me sick to my stomach every time I truly look at the photographs of what we saw. This bill is not going to be watered-down, I hope. It is going to allow us the tools necessary to really and truly make our citizens comfortable knowing that the irrigation pie, the quarter-mile, half mile of irrigation pipe that’s sold, that one, put in the back of one truck is not going to go to our public lands and require our resources to remove it and to eventually send it to recycling or to the landfill. So I appreciate the letter. I did not know the letter was in Sacramento. I was surprised also. But the letter that this Board sent carried weight and Assemblyman Ammiano accepted it and did discuss it and so I thank the Board for understanding the predicament we are in trying to come up with a unique solution of preventing further damage to our resources.”
The Board voted 3-1 to ratify the letter, with Hamburg dissenting.
Supervisor John Pinches was absent.
Later that week Supervisor Hamburg was still annoyed enough to go on KZYX to “explain” his opposition.
“I think it's too broad and its terms are too ill-defined,” Hamburg told KZYX’s Dave Brooksher. “This is a bill that allows sheriff’s deputies to stop people who are carrying irrigation supplies in the back of their vehicle, in most cases that would be an open pickup truck. It applies to any state lands and also to any private timberlands. However, the bill does not define private timberlands and the definitions in the code are themselves ill-defined. So I think to support a bill when it's not clear where it will be enforced is not a good thing to do. Secondly, the bill increases penalties for violations of the Fish and Game code, specifically where marijuana is part of the equation. So if you are diverting water or if you are leaving trash in the woods in connection with your personal residence, your vegetable garden, your vineyard, there is a certain penalty. If you violate those code sections in connection with marijuana we would up the penalty up by 40%. A $25,000 penalty versus and a $40,000 penalty. That doesn't seem right to me. If I had been the chair, and I will be the chair next year, I might use my discretionary powers as the chair a little bit differently. In this case Chairman McCowen took the action that he did based on the Board’s legislative platform that was adopted earlier this year,which does speak to the board supporting measures to interrupt illegal growing of marijuana.
"I would argue that even if that is the Board's position there are some remedies for illegal growing that are better than others. The Chesbro bill might have some efficacy for this goal or it might not. I think the boardroom is where that should be discussed before the decision is made to support a bill. What the bill is supporting I think is ill-defined. and I think in some cases it is ill considered. So I certainly would have appreciated it if he, as the Chairman, would have put it on the agenda and let the Board discuss it. Don't forget that at that board meeting on Tuesday there were only four of us. John Pinches, who often sees these issues more similarly to the way I do than the way some of the other board members do, might well have been a second vote and a 3-2. I understand why the Chair did what he did. I'm not sure I would have done it the same way on another issue..... the Board had not had a chance to ratify it. So you could say on Tuesday that it was ratified. It was on a split vote. But it was ratified.”
On Monday, April 23, The Board issued proclamations in support of Workers Memorial Day, Mental Health Month, National Drug Court Month, Recognition of Graduates of “Leadership Mendocino” (but not by name). They also “recognized “The Human Race,” and Victims Rights Week.
There was also a brief discussion of a proposal to waive some or all permit fees for businesspeople who create jobs.
Acting Planning Director Roger Mobley told the Board that he couldn’t find comparable programs in other counties, but that they had received a letter of support from a group of Ukiah area realtors. (Surprise!)
Supervisor Kendall Smith didn’t think Mobley’s recommendation for a pilot program was justified. “If other counties don’t do it, why do you propose it? Smith asked. “Why would it work here if it doesn’t work elsewhere?”
Mobley agreed: “Right. There are no fee waiver programs in other counties. And no one took advantage of deferral program in one county. But lack of interest isn’t a reason not to do it. So this pilot program has been proposed.”
Supervisor Carre Brown, who co-wrote the proposal with Supervisor McCowen, said that non-profits could be included and that it could be capped at $50k, first come, first served.
Smith was still skeptical, saying the proposal was “an extremely simplistic approach to job creation. What type of jobs? What has to be in place?”
McCowen suggested that fees would be rebated based on the Planning Director’s discretion. “I don’t know if it’ll work, but it makes a statement that Mendo supports business, that we are not hostile to business which some people perceive. It could change the negative perception some have.”
Mobley added that the criteria would be “just jobs in general. We would look at a demonstration a permit holder had after the business or expansion was in place.”
Brown said she knew of no other ways to express support for business. “With the decline of redevelopment agencies, there’s less ways.” She then moved to adopt a pilot program.
Hamburg disagreed: “I don’t support this. There’s no evidence of success. No letters of support from the usual business groups. It’s unproven and not strongly supported. It’s just one more thing for Roger [Mobley] to do. It’s a mini-boondoggle.”
Without Supervisor Pinches on hand, the vote would likely be 2-2, so Chair McCowen deferred the vote until Supervisor Pinches can weigh in.