An abuse of power

In the letter, obtained by the Huffington Post, Reps. Sam Farr, D-Calif., and Dana Rohrabacher, R-Calif., requested that DOJ Inspector General Michael Horowitz open an internal investigation into the department’s continued prosecutions of marijuana dispensaries, against what they said was the clear letter and intent of the law.

In its Appropriations Act for 2015, Congress had passed a provision introduced by Rohrabacher and Farr designed and intended to ward off federal interference with marijuana-related businesses operating legally under state law.

“We, the authors of the language, and our many colleagues — including those who opposed the amendment — laid on the record repeatedly that the intent and the language of the provision was to stop DOJ from interacting with anyone legitimately doing business in medical marijuana in accordance with state law,” wrote the Congressmen.

Signed into law by president Obama, the amendment received a second vote of approval from Representatives this summer. “As the marijuana provision is part of an annual funding bill that will expire,” noted the Huffington Post, “the lawmakers introduced an identical version again in June, which was reauthorized by the House of Representatives.”

In April, Farr and Rohrabacher had also demanded that Attorney General Eric Holder “stop prosecution of state-authorized medical marijuana dispensaries” in observance of the same provision, as the Orange County Register reported.

Federal legalese

But the Department of Justice chose to interpret the law in the most hostile manner possible, the lawmakers suggested, citing an April statement by DOJ spokesman Patrick Rodenbush. As the Los Angeles Times reported, Rodenbush said Rohrabacher-Farr, as the appropriations amendment was known, didn’t apply to prosecutions directed at persons or groups:

Rather, he said, it stops the department from “impeding the ability of states to carry out their medical marijuana laws,” contrary to some claims from people being prosecuted that the amendment blocks such prosecutions.

As the Times then observed, this “narrow interpretation of the law” had particularly strong implications in the San Francisco Bay Area, “where the Justice Department has initiated forfeiture proceedings against three medical marijuana dispensaries it considers to be in violation of federal law.”

Outgoing U.S. Attorney for Northern California Melinda Haag had become notorious among pro-pot advocates and businesspeople, joining “the three other regional U.S. attorneys in California in cracking down on medical marijuana dispensaries perceived to be large-scale commercial enterprises,” as Pleasanton Weekly recounted. One dispensary facing the brunt of Haag’s crusade, Harborside Health Center, met the news of her departure with what executive director Steve DeAngelo called “great relief and great satisfaction.”

“In Ms. Haag’s parting statement she said she felt her office had ‘accomplished most of our goals’ during her tenure,” DeAngelo said in a statement. “The one goal she most assuredly has not accomplished is closing down Harborside Health Center. We hope her successor will have a more finely tuned understanding of compassion and justice than Ms. Haag has displayed, and allow Harborside to focus on serving our patients instead of battling a court case that should never have been started.”

Conflicting actions

Although the Department of Justice could opt to ignore the mismatch between its conduct and the law, the law itself would hold them to account for doing so. At stake is the applicability of the Anti-Deficiency Act, as Farr and Rohrabacher argued; as Reason indicated, that law “makes it a crime to use federal money for purposes that are not approved by Congress.”

If passed, the Senate would forward her bill to the Republican-controlled U.S. House of Representatives for possible reconciliation with a dissimilar drought bill pending there, H.R. 3964, the Sacramento-San Joaquin Valley Emergency Water Delivery Act of 2014, by Rep. Devin Nunes, R-Calif.

But why aren’t the Republican senatorial fish biting at the Democrat bait?

The mainstay of Feinstein’s bill is not based on repealing environmental laws, but on the greater “flexibility” of water allocations among fish, farmers and cities. Feinstein’s call to relax environmental regulations during the drought has incensed environmental organizations such as the Bay Institute in San Francisco.

By contrast, the GOP bill in the House does repeal environmental laws.

Except for Oregon, there is nothing in a California drought bill for most senators from states outside of California.

So back on Feb. 14, 2014, Feinstein, joined by Sen. Barbara Boxer, D-Calif., smartly broadened the base of possible support for S. 2016 by getting support from both Democratic U.S. Senators from Oregon, Ron Wyden and Jeff Merkley.  Merkley is facing re-election in November against Republican challenger Monica Wehby, who is running on a platform of water deregulation.

Feinstein’s drought bill makes Merkley look like he is the candidate who wants to reduce inflexible regulations that prevent farmers from getting water in a drought.

Money

Feinstein claims the money allocated to drought relief in her bill would go to alleviating some of the impacts of drought along the Klamath River Basin in Oregon.  However, the $300 million in drought relief in the Feinstein bill is the same funding touted by President Barack Obama when he visited California in February.

The Farm Bill of 2013, approved by both houses of Congress, already allocated that funding.  So there is no new drought funding in the Feinstein bill that makes voting for it necessary.

Moreover, Section 13.2 of the Water Rights Decision 1641, adopted in 1999 by the California Water Resources Control Board, already provided the flexibility Feinstein says is needed to provide drought relief (see here and here).

Decision 1641 also provided that any subsequent decisions could override provisions of the California Environmental Quality Act and the U.S. Endangered Species Act in the “greater public interest” (Section 14.4).  That means water could be provided to farmers over fish in a drought.

Mike Wade of the California Farm Water Coalition issued a statement recognizing Feinstein’s redundant gesture to relax environmental regulations during a drought:

“Elected officials are charged with representing the needs and interests of their constituents, a difficult challenge for Senators in a state as diverse as California. Elected officials, unlike agency staff, are accountable to the constituents they represent, and as such are the appropriate ones to engage in policy-making. When a law or other policy isn’t working, they have the responsibility to evaluate it and make the necessary changes.”

Wade also brought up the Bay Institute’s opposition to any purported relaxation of environmental regulations that might allocate more water to farmers:

“Environmental interest groups like the Bay Institute seem to want flexibility by everyone but themselves. There is little care for the people who are standing in food lines because no water is being delivered to support their jobs. In extreme years like this you would hope that even the most ardent environmental activists would show a little humanity.”

Elections

So why the mostly symbolic outrage by environmental organizations over the relaxation of environmental regulations that were already approved and met all requirements of CEQA and the Federal Endangered Species Act? Because elections are coming up.

Although neither U.S. Senate seat from California is part of this year’s election, Democrats are in danger of losing their majority. If Republicans take over the Senate, Feinstein would lose her chairmanship of the Senate Intelligence Committee and other posts; and Boxer would lose her position as chair of the Senate Environment and Public Works Committee and other posts.

So, as noted above, Democrats need Merkley to retain his Senate seat from Oregon.

Democrats in the House also are worried about losing more seats to the majority Republicans. The district of Rep. Jim Costa, D-Fresno, is in the drought epicenter.  Costa is a member of the Subcommittee on Water and Power in the House. 

Costa has lifted his own drought bill in the House, H.R. 4039, the California Emergency Drought Relief Act of 2014. It is co-sponsored by Rep. Tony Cardenas, D-Los Angeles, and Rep. Sam Farr, D-Carmel. Farr is an environmental advocate who is up for re-election in a congressional district where the Lompico Water District is likely to run out of water this summer.

The plan is for a rising tide of empty water bills to lifts all Democratic Party political ships in California for 2014.