folder Filed in Cultivation, Legal
Cops Gone Wild
Peter Cervieri

Each month we will draw attention to raids in cities and counties around California against cannabis operators that are either permitted or going through the local permitting process and are in compliance with local ordinances and regulations. Recently, we featured Yolo County, a county working to create a pathway for cannabis farmers to come out of the shadows into a regulated marketplace. Those efforts have been undermined by raids on legally compliant and permitted cannabis farmers.

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A common tactic used by DA’s, sheriff’s departments, drug task forces, Fish & Wildlife, and other law enforcement professionals is to argue that a local board of supervisors has no legal authority to create local ordinances and issue permits to cannabis operators in advance of the state licensing and permits that won’t be available until January 2018. In short, they are ignoring local policy and the will of the people they represent by claiming that local laws are not applicable and operators are breaking state law.

By simply making a phone call to the California Department of Consumer Affairs Bureau of Cannabis Control at 800-952-5210 and listening to the recorded voice message, anyone can get clarification from the state that, “The Department of Consumer Affairs is in the early stages of establishing the Bureau of Medical Marijuana Regulations and is not issuing licenses at this time. The department anticipates that regulations establishing the structure of the bureau will be in place by January 2018. In the meantime… for businesses, the department recommends interested parties continue to work with their city or county government to procure the local licenses and permits required to establish a medical marijuana business. At this time, the department is placing no additional requirements on existing marijuana businesses.

If you want to know the State of California’s position on whether state licenses are required before local permits can be issued or are valid in advance of the state licensing system, which will start in January 2018, you can educate yourself with minimal effort.

One would assume local law enforcement and district attorneys have an even greater interest in knowing the state’s position on the topic in advance of issuing search warrants and conducting raids against locally permitted operators. At best, a DA or law enforcement professional who argues that local ordinances and permits are invalid until the state licensing system is in place are incompetent for not knowing the State of California’s position on local ordinances. At worst, they are willfully violating state law and blatantly ignoring the intent of the community that they represent. I believe that the latter is more often the case.

This month, in our law enforcement spotlight, we feature Trinity County, it’s deputy DA, Colleen Murray, who is on record stating that the Trinity County Board of Supervisors has no authority to create cannabis ordinances and issue permits to operators in advance of the state permitting process that is not yet in effect, it’s Sheriff’s Department, represented by Ron Hannover, whose name is on search warrants against permitted cannabis operators and who has led the searches, raids and arrests of legally compliant operators, and DeWayne Little of the California Department of Fish and Wildlife, who has made it his personal mission to bring down cannabis operators in multiple counties.

In addition to claiming that local ordinances allowing cannabis cultivation are invalid, law enforcement is also using claims of environmental violations to get search warrants to get on a farmer’s property. Environmental violations seem to be DeWayne Little’s tool of choice.

If anyone other than a cannabis cultivator were not in compliance with Fish and Wildlife code, they would get a notice of violation and be given a reasonable period of time to take corrective measures. No state agency jumps straight to formal enforcement. They start with informal enforcement by putting the person on notice that a violation has occurred and been seen by a warden, and to correct that violation within a reasonable period of time. If an almond farmer or any citizen committed an infraction, they would be given the opportunity to take corrective action.

When it comes to cannabis farmers, however, DeWayne does not feel the need to provide such an opportunity. Once on the property to investigate an environmental infraction, his team observes what they determine to be another crime occurring, felony cultivation, and proceed to cut down the entire crop with machetes. As a law enforcement officer, DeWayne Little has the ability to enforce federal law. And he does so with gusto. He sees a federal law being broken and as a law enforcement officer he can take whatever action he deems appropriate.

Tactically, DeWayne Little uses any means he can to get on a property. Once on the property, he uses cultivation in violation of federal law as the rationale to eradicate crops, rather than issue a citation. The tool most frequently used to get on a property is a violation of some sort of environmental code. From the highway, he can see that “felony cultivation” is occurring. He goes to the judge to get a warrant. The judge denies the warrant because the operator has a county permit to cultivate. So instead, he gets a warrant for environmental crimes occurring. There is no need to get a check to see if the cultivation is permitted.

The environmental crime is just the excuse to get a warrant to get on the property.

DeWayne Little spearheaded the formation of what is called the Watershed Enforcement Team (WET), formed in 2014. Prior to WET’s formation, it was rare for someone to be successfully convicted for the crime of cultivating marijuana. Game wardens got tired of playing whack-a-mole with cannabis farmers, legal 215 growers or illegal cartel growers. Even if they did make an arrest, nothing would happen. A jury would never convict the grower because everyone in the area is tied to the cannabis industry. Fish and Wildlife decided they needed a better tool to prosecute cultivators and win with real fines and real penalties. WET allows DeWayne to enforce water quality laws as well as Fish and Wildlife code, which gives him a broader brush to go after whoever he wants to go after. Fish and Wildlife code allows him to stop someone from illegally taking water from a creek, for example. WET, which gives him the ability to add Water Control Board infractions to his arsenal, allows him to allege crimes that are not directly involved with a creek or a poached animal. He can broaden the scope of environmental crimes to get a warrant so he can get on a property and then change the charges to a federal crime.

The California legislature recently added language to make the penalties for Fish and Wildlife code violations much higher for cannabis cultivators than anyone else who commits the same violation.

I spoke to Keith Groves, an elected Trinity County Board of Supervisors member, to understand the effect this is having on Trinity County’s ability to determine its own policy towards cannabis cultivation. The county wants to allow cultivation, has drafted an urgency ordinance to set the rules of the game, and has created a permitting process.

The frustration of the Board of Supervisors is that there are estimated to be over 3,000 cultivators in Trinity County. 500 of them have started the permit application process to grow cannabis under urgency ordinance 315-816. Instead of focusing on the over 2,500 farmers who are growing illegally and not even bothering to become legal, the DAs office, sheriff’s department, and Fish and Wildlife are going after many of the 500 farmers in the application process. The message from the board of supervisors is to leave them alone and go after the 2,500 who haven’t bothered to make any attempt to enter the legal, regulated market.

I will do a much deeper dive into this story, but wanted to get something out there for now. These are my initial notes.