Abate the Abatement: A Report on Yesterday’s Meeting
About 40 people gathered at the Redwood Playhouse in the old Osprey building in Garberville Sunday, September 16 to discuss an organized response to the ongoing commercial cannabis abatement effort. The meeting was billed as the “Abate the Abatement” meeting.
Paul Encimer and Shakti Norris had organized the resistance meeting. There were sign up sheets for getting together to “Recall Supervisor Estelle Fennell,” and “Abate the Abatement—repeal Ordinance 2576 now. Refund fees and penalties.”
Efforts are at the earliest stages for these two efforts.
Paul Encimer told the room that Shakti researched the legal requirements to recall a county official. He said that a recall of the 2nd District Supervisor will require about 3000 signatures of registered Humboldt County voters. Official petitions to do that have not yet been written or printed.
Encimer said that repealing the Ordinance merely requires a vote of the Supervisors. Encimer said he will attend the Board of Supervisors Tuesday to request that action.
There were about a dozen names on the Recall Fennell and the Repeal the Ordinance signup sheet by the end of the afternoon. But otherwise, the energy appeared to dissipate after the stories were told and people began to drift out of the meeting and have small conversations outside.
Nonetheless, the stories told to the room by the attendees were illuminating.
A significant percentage of the attendees were from Whitethorn and Ettersberg where more letters were posted on various gates over the past week, although those notices did not appear in the legal notices section of either the Times Standard or the North Coast Journal, the two papers of record. One group from that area were land partners who have a ‘tenants in common’ ownership where one tenant faces abatement but they all will be embroiled.
A man from Whitethorn expressed his rage and yet also his continued love for Supervisor Fennell. He said he received a notice on a gate about ten miles from an undeveloped property he owns. According to him, someone has a trespass grow on the property. He said, “I don’t have time or patience to be threatened by the government like this.” He talked about growing his first seeds several decades ago and about how he put significant time and campaign donations into Fennell’s election.
The man said, “I trusted [Fennell] to look out for our values. She was sent to stop what she has magnified. She didn’t just sign on, she authored this [mess.]”
He still considers Fennell a friend, but he said, “I feel betrayed.” Then he added, “I am sorely disappointed” that Fennell wasn’t there to explain her reasoning.
Another story came from Joshua Allen who currently works as a consultant for commercial cannabis permit applicants. Allen said he failed to pass his probationary period working for the county’s Planning Department. Allen said he was hired in May of 2016 just as the county’s legal permit process was beginning.
Allen told the room that during his short stay with the Planning Department, in the earliest days of the permitting efforts at the Humboldt County Building and Planning Department, that Supervisor Rex Bohn sat in on staff meetings. According to Allen, Bohn “pulled permits” and had them go through [the permitting process] first.”
Rex Bohn responded to this by phone Monday morning. Rex said, “You can tell him that’s bullshit!” Bohn said, “I’m in and out of the Planning Department. I’ve been in meetings when staff are present.” However, Bohn said, “I never told them to move anything forward. I dealt with the Director, not staff. If people ask me, then I go to the department and ask about their project.”
Bohn said, “I am very active in my District. That’s what I was elected to do. I help with all kinds of things.” Bohn also said, “Government process is sometimes onerous.”
He said, “I’ve helped a lot of people lately with abatement orders. If you get your situation cleared up, the possibility of avoiding any fines at all is there.”
When asked if he would speak to the county’s decision to pursue its abatement policy, Bohn said, “Abatement came forward because the people coming into the legal system that have to abide by the Fish and Game and all the other agencies…. We got pressure from those people who were upset that they were going through the process while so many illegal grows were still clearly going on. This was the opportunity for us to take that on.”
Bohn said he sees the abatement process getting smoother, “We now know some people weren’t growing … and we understand that the Planning Department is working with them to remedy the situation to avoid any and all fines if possible.”
Supervisor Bohn emphasized, “The ultimate last thing we want to do is to take anyone’s property away from them. [In addition to removing marijuana plants and greenhouses,] we want unpermitted environmental damage remediated and we are good to go. If you need time, sign a compliance agreement and that stops the clock on the fines.”
And while the county seeks to avoid foreclosures, Bohn said, “One guy I worked with did throw the property back to the seller because he [couldn’t] meet the requirements.”
Another man present was attorney Fred Fletcher who works with cannabis-related abatement. He did not answer questions in the meeting but listened attentively to the stories and questions people had.
Outside of the meeting, I asked him for his professional observations about the county’s abatement efforts. Fletcher said, “It is absolutely appropriate” for the county to uphold its rules and the environment with an abatement effort.
But Fletcher described the abatement policy the county is pursuing as an “experiment.” Fletcher said the amount of the fines is “unprecedented” in California. Fletcher said that the county is “getting out of its lane” using the abatement process to enforce environmental law and state business codes rather than using it as a complaint-driven process.
Fletcher explained that makes the county “the complainant and the enforcer.” He also said that it brings “selective enforcement into question” if the county is “going after the [failed] permit applicants first.”
In previous interviews, Planning Director Ford has said that the department is being random in the abatement enforcement.
And Fletcher said the burden of proof is absolutely on the county. He said it is constitutional to use aerial photographs and flyovers to assess even residential property without a warrant, citing California v Ciraolo I, 476 U.S. 207 (1986) which determined “that warrantless aerial observation of a home did not violate the Fourth Amendment.”
However, he said the county must prove what is inside the greenhouses. Fletcher said part of the service the county has paid for included sensing data that can determine what is inside greenhouses, but the county will have to use that data and have to prove that it is reliable.
Fletcher also explained that when fines are so high that they threaten to take people’s property or livelihood away, the court will likely have a higher expectation of the county to prove it’s case. Fletcher said, “The greater property deprivation, the more due process they have to offer. With these big fines, the standards become higher and harder to prove. They are making their job harder with the amount of these fines”
But Fletcher also said the fines are so high, no one can afford to take the risk of going to court to argue their case. “I haven’t experienced a client who wants to keep growing and fight,” he explained.