News Flash: Weed Isn’t Exactly Legal.

What’s changed since California voters passed Prop. 64?
By Barry Bergman

NOT FAR FROM THE OREGON BORDER, in the serendipitously named city of Weed, the Hi-Lo Café boasts a display of cannabis-themed souvenirs. Among the buttons and baseball caps are Bic lighters that urge smokers to “Enjoy Weed,” “Got Weed?” coffee mugs, and refrigerator magnets bearing the legend “Weed: Keep On Rollin’.” There’s more such merch at the Weed Store, where shoppers can score a hat that reads “Weed Police,” or a T-shirt for the fanciful University of Weed, “A Place of Higher Learning.”

For voters, Prop. 64 held out the alluring prospect of ending the disproportionate criminal prosecution of people of color, along with the promise of a thriving cannabis
industry.

The high jinks stop, though, once you cross into unincorporated Siskiyou County. Take a short detour off I-5 and you reach a gravel-road subdivision, one of several where Hmong transplants from Fresno and beyond live in sheds and trailers at the end of dirt driveways, their yards obscured by dark plastic sheeting and their gates often hung with American flags. Majestic southerly views of Mount Shasta only underscore the bleakness of the surrounding moonscape. Basic infrastructure is mostly absent. Residents draw power from generators, water is trucked in, and portable toilets are everywhere.

Behind the opaque sheeting lie cannabis gardens. Like all outdoor grows, these are now banned throughout unincorporated Siskiyou, which means most of the county. And Hmong growers, most of whom moved here before Californians voted to legalize recreational pot in November 2016, have been paying the price of vox populi in the form of military-style sheriff’s raids and the loss of their plants and income.

Siskiyou’s Hmong have learned the hard way that Proposition 64, the Adult Use of Marijuana Act, comes with unintended consequences. In the post–Prop. 64 world, it turns out, growing or selling pot is all but prohibited in vast swaths of the Golden State.

Some jurisdictions, like Siskiyou County, have banned commercial cannabis operations outright under the initiative’s “local control” clause. Yet even in counties as pot-friendly as Siskiyou’s neighbors Humboldt, Trinity, and Mendocino—California’s Emerald Triangle, the fertile crescent of weed, proudly feeding America’s heads for going on 50 years—acquiring the needed licenses for a growing operation is an arduous, expensive ordeal. And many legacy growers, finding that entry into the legal market is cost-prohibitive, remain in the shadows, where illegal cultivation is now chiefly a matter of civil law, without risk of criminal penalties.

If you were among the 57 percent of voters who approved statewide legalization of weed in 2016, you may have believed “legalization” would eliminate laws against cultivating, selling, or buying pot statewide. Yet even if you entered the voting booth understanding that Prop. 64 would open the floodgates of regulation, as many farmers and sellers did, you might be surprised at the current state of affairs.

“It’s much more difficult to grow cannabis legally today than it was five years ago,” says Van Butsic, a co-director of UC Berkeley’s year-old Cannabis Research Center, a multidisciplinary hub that focuses on questions of natural science, sociology, and policy.

For voters, Prop. 64 held out the alluring prospect of ending the disproportionate criminal prosecution of people of color, along with the promise of a thriving cannabis industry. At an estimated $12 billion in annual sales, marijuana is by far the leading cash crop in a state where ag is king. Taxing the trade would generate much-needed revenue for the state. But the regulatory system envisioned in the initiative only took shape during the year after it passed.

“It was one of the largest initiatives the voters have ever passed,” says Terra Carver, executive director of the Humboldt County Growers Alliance. “They didn’t read it. They were like, ‘Criminal justice, social justice. We want to smoke weed. Yes.’”

Countless weed enthusiasts, however, are hard-pressed to find state-sanctioned cannabis in, or near, their own communities. City and county governments in as much as 80 percent of the state have banned dispensaries and delivery services in their jurisdictions. For licensed growers, that means a lot of potential customers have little choice but to buy from black-market sellers. (Cultivation or sale of even small quantities is still a felony under federal law, which labels marijuana a narcotic “with no currently accepted medical use and a high potential for abuse”; a stigma it shares with heroin.)

All told, some 40 of California’s 58 counties have effectively outlawed weed, either enacting zoning and other ordinances to keep business activities out or, like Siskiyou, enacting explicit bans. Michael Polson, an anthropology postgrad affiliated with the Berkeley research center, views the heavy hand of anti-cannabis forces in Siskiyou as an extreme manifestation of hostility toward a plant many still consider taboo.

LAOTIAN HMONG WORKED WITH THE CIA during the Vietnam War, and nearly 100,000 would relocate to America from refugee camps in Thailand after the U.S. withdrew. Some say they came to Siskiyou because it stirred fond memories of the mountains back home. Others say the lure was cheap real estate and cannabis profits. It was common in Laos for Hmong to farm opium. Many now grow cannabis, ostensibly for the medical market.

Siskiyou prides itself on living by Zane Grey’s “Code of the West,” borrowing the phrase for the county’s official primer on “the realities of rural living.”

Sheriff Jon Lopey, an ex-Marine with a predilection for right-wing politics, views the Hmong growers as invaders. Beginning in earnest in 2015, some 6,000 Hmong poured into overwhelmingly white Siskiyou County, population 44,000. Hmong growers soon outnumbered conventional farmers and ranchers.

“This is war,” he told the Los Angeles Times in late 2017, days after local lawmakers, who had already passed a moratorium on all cannabis commerce, declared a state of emergency in Siskiyou. His county, he told a reporter in 2017, had been “invaded by 2,000 illegal cultivation sites on private property.” He’s previously suggested that drug cartels operating on public lands might be “financing some of these private grow operations.”

“There’s a lot of talk about cartels,” says Polson. “I haven’t seen one court case that’s actually traced any cannabis grows on U.S lands to a cartel in particular.”

Enforcement of civil ordinances is the province of the sheriff, who oversees raids on Hmong-owned gardens in military camouflage. After the passage of Prop. 64, Polson and Margiana Petersen-Rockney, a Ph.D. student in the Department of Environmental Science, Policy and Management, set about speaking with a broad cross section of Siskiyou citizens—Hmong residents, government officials, medical cannabis advocates, farmers, and ranchers. They examined public records and county ordinances, attended community gatherings, and analyzed minutes and audio of Board of Supervisors meetings in an effort to understand why “cannabis cultivation has been disqualified as agriculture and substantively recriminalized.”

What they discovered, Petersen-Rockney says, is a “complicated story about fear of change,” especially shifting demographics and all that might portend for longtime Siskiyou residents.

Vaughn feels soaked by the water board, which, like other agencies he’s accepted into his life, keeps changing the
rules.

Siskiyou prides itself on living by Zane Grey’s “Code of the West,” borrowing the phrase for the county’s official primer on “the realities of rural living.” The document stresses rugged individualism, self-reliance, and “the right to be rural.” A longstanding secessionist movement, whereby Siskiyou would join with like-minded neighbors on either side of the Oregon border to form the 51st state of Jefferson, was endorsed by the Board of Supervisors as recently as 2013. Yet that hands-off libertarian ethos, somehow, hasn’t stopped the long arm of the law from reaching into Hmong residents’ privately owned gardens, waving the banner of civil-code violations.

LIKE THE HMONG IN SISKIYOU, CHRIS VAUGHN was drawn to Mendocino County by the prospect of loosely regulated medical marijuana. Burly, bushy-bearded, and identifiable as a green rush immigrant only by his Alabama accent, he’s been growing weed for over 18 years, mostly back East. He came to California in 2012 before the state imposed stricter rules on medical marijuana, and before Prop. 64 legalized cannabis for recreational use.

We’re sitting in a fragrant building on the Ukiah campus of Flow Kana, a cooperative designed to help smaller-scale farmers compete in a market that legalization has made more complicated and capital-intensive. One level below is a glassed-off shop floor where, two shifts a day, white-uniformed workers trim and package cannabis plants as pre-rolls and jars of flowers. The company, which occupies an 80-acre spread once owned by Fetzer Winery, partners with farmers like Vaughn with a mission to process, manufacture, and distribute craft, sun-grown cannabis.

Vaughn himself is on the payroll here as a manager of flower evaluation, a gig he needs to supplement his income from his labor of love, Woodman Peak Farm, which he runs with his wife and two partners near Laytonville. Like growers throughout the Emerald Triangle—said to be the source of 80 percent of America’s weed—he stresses organic methods, responsible land stewardship, and quality over quantity.

“My farm probably doesn’t exist without Flow Kana,” Vaughn says. “I don’t have the facilities to trim my own crop. I don’t have the license to transport my own crop. All I have to do is grow it. That’s heaven.”

He gets why neighbors have stayed on the dark side. Compliance is costly. Vaughn pays the same tax rate on his top-shelf product, which he sells for around $1,500 a pound, as he does on his $600 bottom-shelf pounds, a system he terms “ridiculous.” He feels soaked by the water board, which, like other agencies he’s accepted into his life, keeps changing the rules. And because the state deems cannabis an agricultural “product” instead of a “crop,” someday soon he’ll need to make major investments to bring his farm into compliance with federal disability-access requirements for commercial establishments—investments not demanded of farmers who grow food crops.

“That’s when a lot of people really had a lot of hope,” says Carver. Then, with Prop. 64, “the goalposts moved.”

“I just want to be treated like every other crop,” he says, “because I promise you I have to jump through every other hoop.”

Amanda Reiman, Flow Kana’s vice president for community relations, wants the same thing. As a grad student in Chicago, Reiman developed an interest in the racial and social disparities in drug-related crimes, then moved west in 2000 to study drug policy and social welfare at Berkeley, where she earned a Ph.D. It was in Berkeley that Reiman, an arthritis sufferer, discovered medical cannabis. She joined Berkeley Patients Group as director of research and patient services, and later—after being laid off when the dispensary was temporarily forced to shut down by a federal prosecutor—helped manage the Prop. 64 campaign for the Drug Policy Alliance.

Feeling burned out after the election and wanting to get involved in the industry on the ground, she moved north to work for Flow Kana, which she’d been advising since 2015 as “an unpaid adviser who really believed in the farmers’ story and what they were trying to do.”

“I think there are ways that we can address the relationship that the public has with the crop,” says Reiman. “I would encourage us moving forward to say, ‘Look, if you want to say that because it’s cannabis, you have to have a fence with a lock and a surveillance camera because people are way more likely to steal cannabis than alfalfa, fine.’” But in other regards, she argues, marijuana is a crop like any other. “The way that cannabis is being treated in terms of how it can be grown and where it can be grown and what the environment has to look like for it to be able to be grown—that’s being kept at a much higher standard than other plants. And that’s not right.”

TERRA CARVER, OF THE HUMBOLDT COUNTY Growers Alliance, also bristles at what she sees as overregulation in the wake of legalization. A Humboldt native, she notes that among her county’s voters: “The urban areas, Eureka, Arcata, where the bulk of the voters are—they pushed [Prop. 64] forward. Our rural communities, where the bulk of our cannabis farmers are, voted no.”

She herself “came out of the proverbial cannabis closet” in late 2014, she says, and went to work helping to shape a countywide land-use ordinance. It was evident by then that the laid-back rules for medical marijuana would tighten up, and that Humboldt would be wise to get ahead of things.

“That’s when a lot of people really had a lot of hope,” says Carver. Then, with Prop. 64, “the goalposts
moved.”

Carver says Humboldt is making progress in persuading illegal growers to go legit. The sheriff has continued to conduct raids. But a softer approach, a countywide abatement program that began in 2019, employs satellite imagery to identify noncompliant growers, then warns them that they face fines of $10,000 per day per violation if they fail to respond in 10 days. “And so, either you’re signing up and you’re doing whatever you can to pay and get into the system, or you’re shutting down.”

Meanwhile, those who have come into compliance bear substantial burdens to stay there. Beyond the high taxes and licensing fees, Carver cites exorbitant costs for environmental studies most farmers agree are needed, even as they struggle to pay for them. Then there’s the ban on interstate commerce for federally controlled substances, the reluctance of bankers to provoke the U.S. Justice Department by working with cannabis businesses, and a post-Prop. 64 retail market that “80 percent of the state has banned.”

“Prohibition is alive and well,” she says. “Until we can get local jurisdictions to understand that allowing for access to retail is actually a benefit to public safety, public health, and the environment, we’ll continue to see the unregulated market thrive.” And she fears that licensed retailers will have to shut down in the face of competition from black-market sellers. “If we lose our retailers, we lose our supply chain. That scares me.”

Just the same, she adds, Humboldt growers are doing “better than anywhere else in the state,” in part because the local industry has stayed small and independent. “The companies we’re seeing that are falling apart across the state took on large-scale investment because the analytics companies came out with these big, flashy reports about ‘The next green rush in California, it’s going to be amazing.’”

“People are choosing the illicit market because the regulated market is too scarce, and too expensive.” —Amanda Reiman

However one may have imagined the future of cannabis legalization, Carver says, the regulatory framework now in place is failing virtually everyone.

“Ironically enough, what I’m seeing is even those who championed Prop. 64 are starting to say that it’s completely broken,” she says. “And we’re starting to see a lot of the larger companies that funded and supported Prop. 64 doing massive layoffs right now.”

Meanwhile, despite Prop. 64—or because of it—the black market, too, is alive and well. Ted Grantham, a co-director of Berkeley’s Cannabis Research Center, says his group’s data suggests that the number and size of unlicensed farms, at least on the North Coast, have remained steady, “partly because growers have little fear of enforcement.” Unlicensed pot shops and delivery services have proved just as fearless. By some estimates, nearly 3,000 retailers operate illegally in the state, compared to fewer than 1,000 licensed sellers. More than 70 percent of the state’s $12 billion in 2019 sales was in black-market weed.

Yet even modest reforms in federal law—waivers for pot-legal states like California and Washington, for example, to engage in interstate commerce between and among themselves—could be a boon for the legal market. “Other states really want our weed,” notes Reiman of Flow Kana. “If the rest of the country legalized to where other states were able to get legit, tested cannabis from licensed providers versus, you know, on the back of a truck or in a bag, they would choose that. People are choosing the illicit market because the regulated market is too scarce, and too expensive.”

And as long as the market stays tight, prospects for large-scale cannabis agriculture remain as uncertain as they do for craft growers. Grantham and others associated with the Berkeley center are eager to shed light on what the future holds, as California’s cannabis industry moves from a gray market to something resembling conventional agriculture.

“This is a really unique situation where you have this transition of a wide-scale and extremely valuable crop into a regulatory system,” Butsic of Berkeley’s Cannabis Research Center says. “And the idea is that if we can do this right—and by right I mean address environmental impacts, maintain opportunities for small-scale farmers, and get the right suite of regulations in place—then that could really be a model for other systems.” 

Barry Bergman is a frequent contributor to California. His main mellow is zinfandel.

From the Spring 2020 issue of California.
Filed under: Law + Policy
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Comments

I think water is one of the most important factors in this debate. In one growing area, the South Fork, Trinity River, the fish population has been decimated by chemicals from illegal grows. Pot plants need lots of water and there is ever-increasing on this scarce resource as well. We need regulation to restore the rivers to their former quality.
LOL. Chris Vaughn didn’t come out to California until June of 2016. Fact.
Shasta Vista is a “rural residential” zoned subdivision as has been since its creation in 1965. With the current status of cannabis cultivation 99 plant law, commercial growers seeking to avoid potential fed felony charges divvy up large scale operations into small lots. It is a costly start up to purchase a RR lot, hire labor, bulldoze, construct a greenhouse, fencing, get starter plants, on site security. An expensive domestic well doesn’t cut it for the volumes of water consumed, so no well is even drilled. Instead heavy three-axle diesel powered water trucks deliver night and day with constant round trips to the grow sites. few of the trucks are registered DOT, mostly spew toxic pollutants into the area making it unfit for habitation or even recreational use. RR zoning envisions ambient sound at 50 decibels; one truck drives through at 85dB. multiply that by 25-50 trucks per hour. That’s the outcome of current cannabis legislation. Longtime rr owners selling out their lots to the Hmong “syndicate” looking elsewhere for that “quiet neighborhood.” Any idea how much a water truck goes for? Some drivers don’t even have license. All cash.
So, what are pro-legalization folks advocating now? If Prop. 64 didn’t make things better, then presumably we should propose something to fix it. That’s how legislation works: you try something, you see how it goes, you adjust and move on. If the solution is a single statewide licensing and regulation regime, then let’s do that.
One of the quotes in the article says “pot should be treated like any … food crop.” But its NOT a food. There are many people who are sensitive or even allergic to pot - in all forms and in all ways. And I’m not talking a few sneezes when it blooms. I, myself, get a horrendous sore throat and migraine within minutes as a minimum When I’m exposed to the smell of pot (or hemp).
The issue is not the “plant”. The issue is the collateral damage that occurs to grow the plant. Here in our area we have hundreds of illegal growers even though the county has provided a pathway for being legal. Our Sheriff’s and code enforcement raids have turned up Carbofuran, an illegal redenticide, packs of guard dogs are let loose at the end of the growing season, the water usage has caused the wells of neighbors to go dry, we have had 11 murders in the last two years just in our valley. In each either marijuana or a BHO lab was involved, We also have water trucks and our local power grid is right on the edge during the summer months from illegal growers using power for wells, cooling, lights, etc. if anyone. thinks a 6 ft. fence and a hoop greenhouse are going to keep the bad guys away you are smoking way too much of your own product.

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