An uneasy partnership

With the prospect of a big ballot initiative on recreational marijuana coming next year, attention in Sacramento has resulted in new regulations and designated regulators. “Amid the state’s prolonged drought, Gov. Jerry Brown last year approved $3 million in funding to dispatch oversight officers and environmental scientists to identify and inspect water-thirsty pot gardens in sensitive natural settings,” the Sacramento Bee reported. “Officials from the State Water Resources Control Board and Department of Fish and Wildlife so far have visited 150 sites with growers’ approval. They have issued instructions on water conservation and filed 50 notices of environmental violations.”

The changes inaugurated a new compliance program that draws together officials from the state water board and the Department of Fish and Wildlife, according to the Bee. “Under pending legislation, the program stands to be expanded statewide,” although its reach is restricted to private farmers, not “outlaw growers surreptitiously using public lands[.]” Those illicit growers have come under fire in recent months for their very high rates of water consumption.

Trial by fire

Other drought-related circumstances have helped push the pot industry and state officials into closer company. Wildfires, for instance, have extended the threat of economic destruction to growers, who face their own particular problems as gray-market producers. “Marijuana farms suffer the same risks as other farmers in California — facing the potential loss of their crop, on top of the strain of the drought,” according to Alternet.

“The profitable Napa wine industry, too, is threatened by wildfires, with winemakers concerned that smoke-infused grape skins will alter the flavor of the wines. But some of those impacts are exacerbated for marijuana growers, who won’t get subsidies from the state if their crop is lost, and whose value per plant is much higher than that of many other plants.”

In from the shadows

At the same time, some California officials have set about trying to incorporate marijuana farms into a system of standardized water regulations. “California’s four-year drought has prompted authorities to broaden their approach to regulating cannabis cultivation with the aim of protecting sensitive watersheds,” the Bee noted. “In addition to the environmental compliance program, the state has begun issuing marijuana water permits and ramped up efforts to target environmental offenders through civil lawsuits.”

This month, the North Coast Regional Water Quality Control Board overwhelmingly voted in fresh rules requiring farms in excess of 2,000 square feet either to register with itself or approved third-party agency or organization, the Guardian reported. “A number of issues including erosion control, water and wetlands buffers, irrigation runoff, chemical contamination and waste will be regulated under the new rules.”

Although the rules announced another substantial regulatory advance into marijuana farming, which has long operated under the radar, they also reflected the state’s increasingly accommodating attitude toward the once-illegal crop. “Those who don’t register but are discovered to qualify will be notified with 30 days to enroll before enforcement actions, including financial penalties, are pursued, board personnel said,” according to The Press Democrat.

Although some growers welcomed the opportunity to come out from the regulatory shadows at the state level, others cautioned that the apparent liberalization could have more dangerous consequences. “A major concern is that due to marijuana being illegal on the federal level, those farms prepared to comply and register could expose their activities to criminal charges on a federal level,” added the Guardian.

Notably, the regulations do not distinguish medical from recreational marijuana. Expectations have already arisen that the North Coast pilot program will “serve as a model for other regions, beginning with the neighboring Central Valley, whose board takes the matter up next month,” The Press Democrat noted.

As the state’s drought-imposed cutbacks in water consumption have tightened, medical marijuana farmers have largely flouted the rules — until now.

A new era

The Cannabis Pilot Project, staffed by personnel from California water boards the state Department of Fish and Wildlife, recently set an example with its first strike against environmentally harmful marijuana farming. “The Central Valley Regional Water Quality Control Board has fined property owner Christopher Cordes and contractor Eddie Axner Construction Inc., a total of $297,400 for large-scale grading activities that resulted in actual and potential harm to surface waters in the Ono area of Shasta County,” according to the Central Valley Business Times. In addition to grading the land without a permit, the offending parties violated water quality laws in an “egregious” manner, the board ruled.

In an illustration of the enforcement challenges faced by the board, officials did not become aware of the violations until Shasta County sheriff’s deputies “raided the site in October and destroyed about 100 plants growing there,” as the Associated Press observed.

Pot farmers have been scrambling to adapt to the state’s new crackdowns on excessive and unauthorized water use. In the north San Francisco Bay, cultivators formed a new organization, the Sonoma County Growers Alliance, to organize around the challenge. Former Sebastopol mayor Craig Litwin “said the flip side to getting recognized as legitimate businesses is that growers won’t be able to flaut environmental regulations by planting pot directly along creeks or diverting stream water need for endangered fish,” reported The Press Democrat.

The group’s inaugural meeting drew Assemblyman Jim Wood, D-Healdsburg, who “expressed surprise to find so many of the region’s growers backing his efforts to place themselves under government oversight.” As the Press Democrat noted, Wood cautioned that the race to curry favor with lawmakers and regulators could leave growers dissatisfied even if they succeed, speculating that “in a few years they would be asking him, ‘Dammit, what is with all these regulations?'”

Regulating medical pot

Growers have already gotten an early taste of the Legislature’s attitude toward their product. Several bills regulating medical pot have been condensed into a new bill making its way through Sacramento. “The new version of AB266 would create the Bureau of Medical Marijuana Regulation under the Department of Consumer Affairs,” California Healthline reported. “That agency would be tasked with licensing and regulating dispensaries, as well as any cultivation or distribution of medicinal marijuana. The bill would allow counties to impose a tax on the cultivation and distribution of medicinal pot.”

In addition to curbing harmful and illegal water usage, lawmakers took aim at the quality of the drug itself. “For those who need and use it, it’s important that it be high quality,” said Assemblyman Rob Bonta, D-Oakland, according to California Healthline. “Because of a lack of regulation, mold or pesticides and other harmful ingredients could be in it and that could threaten the health of patients.”

Splitting the difference

Fearing a messy clash involving growers, environmentalists and law enforcement, some policymakers have set out to ensure that lawbreaking growers of legal medical pot can make an orderly transition into a regulated marketplace.

In the so-called Emerald Triangle, the hotbed of marijuana cultivation centered in Humboldt County, water regulators have crafted a new approach. “The North Coast Regional Water Quality Control Board is poised to adopt a program that would require all marijuana cultivators to register, pay a fee, follow strict environmental guidelines and seek appropriate permits from the California Department of Fish and Wildlife,” the Los Angeles Times noted.

According to the Times, the impetus for the proposal’s development can be traced to Gov. Jerry Brown himself.

But the recent report from the U.S. Department of the Interior found that the Condor Recovery Program “continues to increase the number of condors in the wild in Arizona, Utah, California and Baja California.

As of the end of July, according to the report, “there are 429 condors in the world of which 224 are free flying (California 123, Arizona/Utah 71; Baja California 30).”

The number is up from only about 55 condors as recently as 1990. The following graph shows the steady increase, which is expected to continue.

Bullets

Concern has been advanced in California that lead from hunters’ bullets has been killing off the condors. The federal condor report was submitted from the U.S. Department of the Interior to the California Fish and Game Commission on Oct. 29. That was 18 days after Gov. Jerry Brown signed into law Assembly Bill 711, by Assemblyman Anthony Rendon, D-South Gate. The bill bans using lead bullets in hunting in California beginning in 2019.

According to the bill’s language:

“California passed a successful law preventing the use of lead ammunition in condor habitat. However, because these restrictions only apply in certain areas or to the hunting of particular species, many species of wildlife remain threatened by the use of lead ammunition and more protections are needed. These successes have shown us how to extend protection from lead poisoning to other wildlife.”

In his signing statement, Brown wrote:

“Lead poses a danger to wildlife. This danger has been known for a long time. … Since 2007, California has prohibited it in the eight counties within the condor range. In fact, at least thirty other states regulate lead ammunition in some manner.”

However, the federal report found that the increase in the condor population began well before a 2007 ban by of the use of lead bullets by hunters in condor areas. The above graph clearly shows a steadily increasing trend line that did not jump upward beginning in 2007.

One hypothesis the paper offers is that “there are other sources of lead in the environment that condors may be accessing, including 5 individual condors apparently ingesting chips of lead-based paint on a fire tower.”

The authors point to a recent study that found 8 percent of the birds had exposure to lead that “did not match the isotopic signature of ammunition, background levels, or paint, indicating an unidentified source of lead in the environment.” 

Caring for condors

Of the “other sources” of threats to the condors, micro trash especially can be deadly. According to the Santa Clarity Community Hiking Club, which has taken the lead in cleaning condor habitats:

“Micro-trash consists of little bits and pieces of glass, metal and plastic. The Condors are attracted to these items because they sparkle and shine. They eat it, and feed it to their chicks. Both the adults and chicks die. In the last 5 years, we have picked up more than 5,000 lbs of micro-trash in the forest.”

Indeed, it is human involvement that has saved this mighty symbol of California. Every condor is tagged, as you can see in the picture of the condor at the top of the page.

According to the federal study, every condor is captured once a year — twice a year in California — examined by veterinarians and if necessary treated with medicines or more invasive procedures. “Virtually all condors are equipped with VHF telemetry units, and each site regularly tracks the condors that come from that site,” according to the study. Some condors even “are equipped with GPS units,” so they can be closely tracked.

Perhaps if these facts had been better known, AB711 might have had a harder time passing during the rush to pass dozens of bills in mid-September. The votes included many Democrats crossing the aisles to vote Nay, such as state Sen. Lou Correa, D-Santa Ana.

As the 2019 deadline nears, it’s possible the Legislature might revisit it, in particular if it looks as if the state’s hunting industry will be hard hit by the ban on lead bullets, leading to the loss of jobs. In his signing statement, Brown also promised, “the least disruptive phase-in, including incentives for hunters to make the transition.”

By Dave Roberts

If you decide not to pay your taxes, you could face stiff penalties, seizure of your property and jail time. But when California’s government is the tax deadbeat, state officials thumb their noses at the tax man.

The California Department of Fish and Wildlife owes more than $22 million to 36 counties, having failed to make its annual payments for more than 10 years for use of county property. Year after year county officials bill and plead for payment, and year after year they get snubbed.

“If the state was a private taxpayer, several pieces of state property would have been seized and sold a long time ago for failure to pay property taxes,” said the California Taxpayers Association in its April 5 newsletter.

The association reported that a representative of the Rural County Representatives of California spoke at the April 3 meeting of Assembly Budget Subcommittee 3, asking the state to pay what it owes for the use of county properties acquired for wildlife preservation.

The DFW owns or administers 722 properties statewide, totaling 1,147,055 acres, according to the DFW Budget Fact Book. That includes 110 wildlife areas, 130 ecological reserves, 268 undesignated lands, 154 public access areas, 20 fish hatcheries and 40 miscellaneous lands.

On March 15 the RCRC and the California State Association of Counties wrote to the Assembly and Senate budget committees seeking the monies owed under the category of Payment In Lieu of Taxes to counties.

Decades of nonpayment

The letter reads:

“[T]he law specifies that when income is derived directly from real property acquired and operated by the State as wildlife management areas, the Department of Fish and Wildlife shall pay annually to the county in which the property is located an amount equal to the county taxes levied upon the property at the time title was transferred to the State. These PILT payments are intended to offset adverse impacts to county property tax revenues that result when the State acquires private property for wildlife management areas.

“[T]his very serious problem goes back in time over two decades to 1990-1991. From 1990 to 2002 some counties received their full PILT payment, while others received partial or no payment of monies owed, accounting for a past due total of $8,838,509. In total, the Department is in arrears $22,755,965 through the 2011-2012 fiscal year.

“RCRC and CSAC again respectfully urges your support for payment of these past due monies owed to counties in the 2013-2014 Budget Year. Additionally, we request the addition in the 2013-2014 State Budget of a specific line item for this purpose to help ensure future payments are made in a timely manner.”

In a press release, RCRC adds that including the PILT payments to the counties as a line item in the budget “is consistent with the principles outlined by the Governor in his [2013] State of the State address that the State needs to pay down debt with the new revenues created by Proposition 30.”

In that Jan. 24 address, Brown declared that it “would be folly … to not pay down our wall of debt. That is how we plunged into a decade of deficits.” After recounting the Biblical story of the lean cows that ate the fat cows, he said, “Let us follow the wisdom of Joseph, pay down our debts and store up reserves against the leaner times that will surely come.”

But since taking office two years ago, Brown has continued the state’s stiffing of the counties. And nearly three months after his State of the State pledge, nothing has changed.

State pleads poverty

DFW spokesman Mike Taugher said that his department hasn’t responded to the counties’ letter, but it intends to do so.

“The reason we haven’t paid PILT in recent years is because our funding to make those payments was specifically cut from our budget beginning in 2002,” he said. “We cannot make payments for items that were specifically removed from our budget.”

But the California Fish and Wildlife Code, which DFW pledges to administer and enforce, does not allow DFW to skip out on its payments to counties if it has money in its budget. “Payments provided by this section shall be from funds available to the department,” states code 1504(c).

And there is plenty of money available to the department — more than $366 million has been allocated in the DFW operations support budget for FY 2013-14. More than $45 million is spent on administration alone. But not a penny is being made available to abide by code 1504(a) which requires the DFW to annually reimburse the counties for property used by the state for wildlife management.

Lawsuit filed

That discrepancy was noted by Glenn County when it filed a lawsuit against the state in Sacramento Superior Court in January 2010. The complaint states that, prior to FY 2002-03, the DFW (then known as the Department of Fish and Game) had been making its annual in-lieu fee payments. But since then the payments have stopped.

The annual tax owed to Glenn County is a little over $58,000. But with the 10 percent penalty and interest, the 10 years of unpaid taxes totaled $1,066,192 through FY 2011-12. The state’s tab has increased to about $1.2 million today.

The lawsuit says the state has:

“taken the same position in each fiscal year commencing with 2002/2003 to the present that notwithstanding the plain mandatory language set forth in Fish and Game Code section 1504(a), the lack of appropriated funds in the budget of the Department of Fish and Game as a result of budgetary decisions made during tough economic times precludes the payment of ‘in lieu fees’ to the County of Glenn as required by the afore-mentioned code section.” 

But, rather than simply paying what it owes, the state has spent the past three years tying up the legal system. After first trying to get the suit dismissed, much of last year was consumed by the state’s attempt to get a summary judgment in its favor, avoiding a trial.

Its two arguments are: 1) in 2002 the state cut DFW funding for payment to the counties, so the department no longer has to make those payments; and 2) Glenn County failed to file claims for nonpayment with the state Victim Compensation and Government Claims Board.

However, that board’s focus is on individual complaints, not tax payment disputes between governmental agencies. It typically resolves claims against the state by people who are considering suing, usually because a state agency or employee is responsible for a death, physical injury or property damage.

Catch 22

Glenn County attorney Huston Carlyle’s sarcasm was palpable in his response to the state’s motion for summary judgment:

“[It’s] an attempt to create the legal equivalent of a classic Catch-22 situation. Let me see if I understand this correctly: The Governor does not propose and/or the Legislature does not appropriate funds to pay a statutory obligation under Fish and Game Code section 1504 by the state to Glenn County going on 10+ fiscal years.

“Nonetheless, Defendants would have Glenn County submit a claim to the Board, which will then (presumably) recommend to the Legislature that it now appropriate funds that it has refused to do for a decade. Of course, a bill will be introduced to do just that and of course it will pass the Legislature and of course the Governor, who supported the 10-year ‘non-appropriation,’ is now going to sign the bill containing the funding? Good luck waiting for that scenario to materialize.”

Carlyle argued that the state’s request for summary judgment should be denied because it does not meet the legal standard “that the party moving for summary judgment bears the burden of persuasion that there is no [genuine] triable issue of material fact and that it is entitled to judgment as a matter of law.”

Judge David Brown sided with the county, denying the state’s motion for summary judgment “because the State has failed to produce admissible evidence demonstrating the absence of a triable issue of material fact…. Evidence that the Legislature did not appropriate funds to the Department is not evidence that the Legislature did not appropriate funds to settle claims. This is a critical difference.”

If Glenn County prevails in its lawsuit, it could open up the floodgates for other counties to sue, perhaps in a class action suit. In the meantime, RCRC is asking county representatives to contact their state representatives. How they phrase it is up to them, but they might ask the legislators to follow the wisdom of Joseph and pay down the state’s debts before the Department of Fish and Wildlife has to step in to stop the lean cows from eating the fat cows.