Penalties, Costs, Fines, and Fees: A Deep Look at the Humboldt County Cannabis Abatement Process

This is Part 3 in a series on Humboldt County Planning and Building Department’s Abatement Program by Nichole Norris–Part 1 is an example of a “Unresolved Notices – Pending Resolution” case, and Part 2 an example of a notice with “Case Closed – Abated, No Admin Civil Penalty.” 

Marijuana in a small, unpermitted greenhouse with other plants. [Crop of a 2012 photo by Kym Kemp]

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Three years into legalization, the globally renowned mecca for cannabis cultivation and culture, Humboldt County, California has about two times as many notices to abate illegal cannabis cultivation as the County has cannabis cultivation permits–about three times that if you include the 470 abatement warning letters.

The first “Notice to Abate a Nuisance” and “Notice of Violation” for cultivating cannabis without a permit was posted May 24, 2017; the most recent that we know of was posted March 17, 2020. In less than three years, the abatement program is set to collect at least $4,707,086.45 from Humboldt County property owners in penalties, costs, fines, and fees.  (This does not include 12 $900,000 Property Liens which have not been finalized, totaling $10.8 million. We will cover this topic in an upcoming story). Some of those residents snared may have caused egregious damage to the environment and some may have been growing small vegetable plots. (Note: these numbers are derived from the 969 cases that we gathered through a Freedom of Information request to the County of Humboldt in March, one additional case was discovered in a separate Freedom of Information Request from November. There may be more that we did not discover.)

Survivors of Legalization:

Before legalization, an estimated 10,000-30,000 marijuana farms were scattered over the hills and in the backyards and garages of homes countywide.

Estimated grows and greenhouses in the Salmon Creek and Redwood Creek areas of Southern Humboldt as seen in this 2015 map created by the Department of Fish and Wildlife. [Please note these were not confirmed grows but we show it to give an idea of the number of grows estimated in one small area of Humboldt County. Study from here.]

According to Executive Secretary Suzanne Lippre of the Humboldt County Planning and Building Department, as of February 2020, there are only 448 approved cannabis cultivation related permits on file for Humboldt County.  A number of permits belong to the same owner. For instance, one person and their related business holds at least eleven of the cannabis cultivation and other related permits.

Note: To the west of Myers Flat, there are an estimated 16-29 applicants in what would likely include the Salmon Creek/Redwood Creek area. The 2015 study map above shows hundreds of grows in just a small portion of that area. [Graphic from the Humboldt County Cannabis Equity Assessment]

The Struggle:

The stated plan of the County for the cannabis abatement program was to remove growers who caused environmental damage and get people to come into the permit process. District Two Supervisor Estelle Fennel spoke about the aim of the abatement program at a Civil Liberties Monitoring Project “Community in Crisis” meeting on August 23, 2018, she responded to a question about “excessive fines” saying,

The [fines] are to get people to do the abatement rather than tag it along because that’s what they would do …(MM 2.44) …I want the maximum number of people, especially the people who care about this land, the water, the trees, I want those people to feel like they can stay here and continue, I don’t care a whip about someone who came here to make money on a big farm. (M.M. -Minute Marker–19)

However, the cost and complexity of the permit process inherently favors larger farmers over smaller cultivators, and, as many former growers have claimed, the process favors those who are not afraid of damaging the environment to make a profit over those who grew small, environmentally sound gardens. Only 86 farms with 5000 square feet and under have gotten permits. The majority of permits have gone to those cultivating 10,000 square feet and greater (252 total).

Small terraced marijuana garden interspersed with vegetables. [Photo from late fall 2009 by Kym Kemp]

A recent survey conducted by researchers with UC Berkeley’s Cannabis Research Center also found that unclear regulatory frameworks and inconsistencies between State and County policies posed a major barrier to compliance for small-scale farmers in particular. 

It is sometimes assumed that farmers who are not in compliance could get a permit, and they just choose to go without one. However, the prohibitive cost and complexity of the cannabis cultivation permit process are rarely considered. Cannabis is likely more regulated, enforced and taxed than any other agricultural industry in the State of California.  The physical environmental site requirements for permitting and licensing by various state, regional, and local agencies are unparalleled, often costing hundreds of thousands of dollars. Furthermore, the costs are often unknown until you pay for permit applications and hire various experts.

Old culvert featured in restoration plan. [Photo provided by an abated landowner who said it cost her over $280,000 to resolve her abatement.]

Cecilia Landman spoke about the complexities she discovered with the water aspect of cannabis cultivation permits at the August 23, 2018 “Community in Crisis” CLMP meeting,

I’m here to tell you as a person who has organized battles over logging,…[organized] two statewide ballot initiatives, I’m here to tell you that I, as a lay person, cannot deal with the application process…

Right now we have to report and deal with five separate agencies over the same source of water. You have to file enrollment with the water quality board. You have to do your statement of diversion of use. You have to do small domestic use. You have to do small irrigation use and you have to be reviewed by the Department of Fish and Wildlife. And, you think a person can do that on their own?

That’s five different reports per year for each one of those registrations, for the same source of water, for the same water being stored. It’s insane.

What many non-growers didn’t realize is that the cultivator going through the permitting process has become a means of upgrading rural infrastructure, including roads for neighboring parcels. According to the Humboldt County Cannabis Equity Assessment,

[Cultivators] are the victims of a regulatory cannabis framework with extraordinarily high economic and regulatory barriers to entry. Those barriers are directly financial, in terms of taxes and licensing, but also reflect the high cost of becoming compliant with county codes. Those codes are not just environmental, but for upgrading rural infrastructure that has not seen public investment since the logging boom.

The complexities and immense costs involved are reportedly the primary inhibitors to undertaking the permitting process for small growers especially, not a lack of desire to comply on behalf of property owners. This is indicated in the size of permitted farms and the number of property owners who paid for a permit and fell out of compliance.

Past Conflicts Add to the Tension:

In addition, a history of conflict between the cannabis community and the Planning and Building Department isn’t helping the situation. It wasn’t long ago those working with the Planning and Building Department brought guns to code enforcement actions.

A North Coast Journal article from April 24, 2008 described the mood of the times. “People were furious, and scared,” the article stated. “And it was happening in all the rural areas of the county — everybody had heard, by now, the report from the hippie-communal property near Trinidad, called Yee Haw, where a sheriff’s deputy on a code enforcement inspection was said to have pointed a gun at a woman and her babies.”

The conflict between the Planning Department and cultivators has historically led to growers (and rural residents) opting out of the system entirely. In 1988, during a Humboldt County Supervisor’s Code Enforcement Hearing, Lary* Carpenter spoke about his experience with Humboldt County Code Enforcement, 

Below is a portion of the same statement transcribed:

There was a red tag on [my] lean-to… We decided…we’d go into the Building Department and find out what was happening…we ran into just hassle after hassle. So we said that’s it….We’re not cooperating anymore, take us to jail. We’re not coming back. We’re gonna go ahead and build whatever we want to build.

That’s been my advice to all my neighbors– is to not cooperate, because it might be easier for you to bring us to jail, than it would be for us to cooperate with the Building Department.

That sentiment still resonates with many rural Humboldt County residents, who, as a result, often live in unpermitted homes. The willingness to buck the system contributes to a thriving black market or, as many growers call it, the underground or traditional market. 

Abatements:

The County wields abatement letters like a stick to bring black market growers into the legal market. But the stick often smacks the small cultivator who has minimal impact on the land as hard as it strikes the large grower who may have many environmental impacts. The stick may even strike someone who wasn’t growing marijuana at all.

Notice to abate. [Photo posted in Redheaded Blackbelt’s comment section on June 24, 2018.]

A number of people caught up in the abatement process have claimed that they were not cultivating cannabis.

However, Director Ford stated at the Board of Supervisors meeting March 3, 2020, “There have been very few cases of false positives, there are only two or three that I am aware of.”

During an April 8, 2020 KMUD Civil Liberties Hour, Director Ford appeared with host Bonnie Blackberry who brought up Ford’s claim saying, “You said you just remembered two or three [false positives]. Is Code Enforcement keeping track of false positives?”…

Ford responded, “We haven’t been [keeping track] but that’s actually not necessarily a bad idea.”

Blackberry added, “I think it would be a really good idea, because I think there are a lot more people than you realize who have had this happen to them.” 

She pointed out that during a pandemic “having a garden and growing your own food should be encouraged. Instead we have your department targeting small greenhouses, associated with homes… .” She continued, “I know people that don’t want to put up little hoop houses for their starts for their vegetable gardens because they are too afraid they are going to have to go through the whole abatement process.”

According to the information we received from the Department, of the 969 abatement cases, about 6% (or 58 cases) are labeled “Case Closed – Notices Rescinded.” The FOI request response does not make it clear as to why the notices were rescinded. (We are awaiting another FOI request.) But, it seems likely a decent portion of those would be false positives in addition to some with cases unresolved and resolved.

Small Size Doesn’t Protect the Grower From Abatement Notices:

During the same April 8, 2020 KMUD Civil Liberties Hour, Blackberry asked Ford, “At one point, probably a year ago or so, you said you weren’t going to go after ma [and pa] 20′ x 30′  greenhouses and I’m wondering what changed?”

Ford responded, “So if we’ve gone after those,…I am interested…in knowing about that because frankly last year’s [2019] direction was nothing under 6,000 square feet.”

Blackberry replied, “Well, then, you’ve got a problem, because…uh… that’s what’s going on.” [Below is the audio clip of this exchange. See kmud.org/archives for the full CLMP show.]

Data from a Freedom of Information request this reporter made to the Humboldt County Planning and Building Department supports Blackberry’s claim. Of the 969 abatement notices we received information about, only 292 properties have alleged cannabis cultivation square footage details listed. Alleged garden areas ranged from 160 sq. ft. to 95,828 sq. ft. and averaged 11,260 sq. ft. 12%  36% of the 292 abated properties that listed square foot cultivation areas were 6,000 square feet and less. 12 % of the properties that were sent notices were 2,000 sq. ft. or less.

Penalties and Fines for Small Cultivators:

The County’s stated position is that a small cultivator could face little or no financial punishment if abated. Director Ford explained at the March 3rd, 2020 Board of Supervisors Meeting,

The fines aren’t a necessary outcome. If a property owner on a small site can stop cultivating, remove the cannabis infrastructure, and restore the site, there are no fines and penalties associated. In some circumstances the amount of grading, the amount of infrastructure that’s on the site that cannot be done in 10 days–that’s a situation where a compliance agreement is offered which comes with a one day fine.”

When reviewing the violations for the 227 compliance agreement signers, this reporter discovered that 175 had alleged “grading without a permit” violations while 52 people had no grading violations at all. Eight of those 227 property owners were said to have had cannabis only as a violation. Twelve cases listed using an RV as a residence as an additional violation. Three had junk vehicles cited. Eleven had outhouse/sewage violations. There were 23 compliance agreement signers who were cited for streamside management area development. Nine were cited for improper disposal of solid waste and two had violations for lighting up the night skies (aka not covering a lit greenhouse).

Ford said that of the 972 abatement notices sent, “463 of those were resolved without any fines or penalties. That’s 47% of all notices sent out resolved without fines or penalties.” (While Ford used the number 972, this reporter only initially discovered 969 notices of abatement and used that to create the data used in this article. However, since then we have discovered one more.)

The Freedom of Information request we filed backs Director Ford’s claim.

However, this isn’t the whole story. When cases “have been resolved without fines and penalties” that does not mean that there is no cost associated with the abatement. There are two classifications of expenses at stake for abatement recipients,

1. The fine or penalty (aka $10,000 daily fines) and,
2. The costs of experts, legal representation, restoration, permits, Planning Dept. administrative fees, and Hearing Officer expenses where applicable.

A case that is classified as “Case Closed No Admin Civil Penalties” still can have  immense costs to property owners. A landowner in a case we covered closely in an earlier story claimed it cost her and her family over $280,000 to meet the County’s requirements.

And, in addition to being required to fix what may be legacy issues handed down from previous owners, the landowner has to pay for the cost of the Planning Department’s work on their case. According to our request, the “Total Admin Recovery Cost Bill” for all abatement recipients listed is $722,287.53. The average administrative cost for the 969 cases we received information on is $745.39. It is not made clear in the FOI request response from the County if this total administrative bill has been paid in full by the recipients yet and how much of that was paid by small cultivators, ie were their costs disproportionately high for their size? (Note: John Ford was not responsive to this reporter’s attempts for an interview at his convenience.)

All Abatements:

Beyond just the small cultivators (and those for whom there is no evidence of cultivation), those who have been served abatement notices still must deal with the ponderous movement of a department not known for being speedy.

While we discovered about 48% of cases are categorized as “closed” of the 969 reviewed, at least 236 or 24% of notice recipients are still facing potential daily penalties of $16,771.19 on average while their cases are left unresolved or have notices pending. This has left some to wonder why the 470 abatement warning letters went out in November 2019, if the Department still has so many cases left unresolved. (See Part 1 for an example)

Only about 58 properties or 6% have finished their compliance agreements and 168 property owners or 17% are paying down compliance agreements. Of the 227 compliance agreement signers, the average penalty is $16,506.38. About 4% of notice recipients are in various stages in the lien assessment and appeal hearing processes. Twelve of these properties have $900,000 liens approved by the Board of Supervisors each, which still may be appealed.

Environmental Concerns:

One of the biggest hopes for legalization was that growers prone to egregious environmental damage would be stopped and our land and water protected from degradation. However, the County’s record on this is mixed. And, different people may come to widely differing conclusions about whether, for instance, living in an RV on a remote piece of property is a valid reason for society to step in and regulate the situation.

Like Larry Carpenter describing his altercation over his lean-to with the Planning Department in the video above, many rural residents may feel the government is overstepping their need to protect the community as a whole. Some locals have reported an incongruity with the intention of the abatement program and its real life effects, questioning whether increased enforcement is serving the environment.

Other residents–frustrated by trash, light and sound pollution, grading, logging, water impacts, and other issues–may wish for a higher level of enforcement.

Here is selection of screengrabs of photos taken by law enforcement at one property abated in August of 2017 out Hwy 36. (Note: all images have had the apn and address removed.)

Abatement Hearings Continue During the COVID-19 Crisis:

There are six abatement hearings in various stages of the appeals process. Each property owner was initially asked for $435,000-$900,000 in penalties at their hearings. Attorney Eugene Denson** reports that decisions for his abatement appeal hearings are being processed through the COVID-19 pandemic.

Even considering the lack of accessibility of the permit process in Humboldt County during the crisis, the cannabis cultivation abatement program continues to move ahead with many farmers not only unable to participate in legal cultivation, but at least 24% of abatement recipients are left with cases unresolved, fearing that they owe more than their properties are worth in penalties, costs, fines, and fees.

*Note: Although the video, spells Mr. Carpenter’s first name as “Larry,” the spelling he used was “Lary.”

**Note: This reporter worked for Attorney Eugene Denson.

The numbers in our story have been reviewed by Chauncy Quam from The UC Berkeley Cannabis Research Center, research assistant for Michael Polson, postdoctoral fellow in the Department of Environmental Science, Policy and Management at UC Berkeley. We want to thank them for their kind assistance and recommend that everyone look at the results they compiled of a survey filled out in part by cannabis cultivators in our area. https://www.icfa.farm/crcreport 

Another very big thank you to KMUD Community Radio for allowing access to the KMUD archive for the Civil Liberties Monitoring Project “Community in Crisis” Meeting at the Mateel Community Center on August 23, 2018. If you would like a full copy of the over 3 hour meeting, email [email protected].