BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 165 Hearing Date: April 7, 2015
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|Author: |Monning |
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|Version: |March 12, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Illegal Dumping in Connection with the Production or
Cultivation of a Controlled
Substance: Civil Penalties
HISTORY
Source: Author
Prior Legislation:SB 861 (Comm. on Budget and Fiscal Review) -
Ch. 35, Stats. of 2014
SB 814 (Comm. on Natural Resources and Water) -
Ch. 472, Stats. of 2013
AB 2284 (Chesbro) - Ch. 390, Stats. of 2012
Support: California College and University Police Chiefs
Association; California District Attorneys Association;
California Police Chiefs Association; California Fish
and Game Wardens Association; California Peace
Officers' Association; Rural County Representatives of
California
Opposition:None Known
PURPOSE
SB 165 (Monning )
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The purpose of this bill is to add additional crimes or
violations to an existing Fish and Game Code statute which
authorizes civil fines for certain natural resource-related
violations in connection with the production or cultivation of a
controlled substance.
Existing law generally authorizes civil penalties for certain
natural resource-related law violations which are committed in
connection with the production or cultivation of a controlled
substance either while trespassing on other public or private
land, or committed on land that the person owns, leases, or
otherwise uses or occupies with the consent of the landowner.
(Fish and Game Code § 12025) These provisions describe a process
for issuing and serving complaints, conducting hearings, and
obtaining a review of a final order. (Id.) This bill would
apply these civil penalties to additional crimes and violations,
as follows:
Violations While Trespassing
Existing law imposes specified civil penalties on persons who,
while trespassing on other public or private land in connection
with the production or cultivation of a controlled substance,
violate Fish and Game Code provisions concerning the following
conduct:
Substantially interfering with a river, stream, or lake,
as specified; (Fish and Game Code § 1602); not more than
$10,000 for each violation;
Contaminating waters of the state, as specified; (Fish
and Game Code § 5650); not more than $40,000 for each
violation; and,
Polluting waters of the state, as specified; (Fish and
Game Code § 5652) not more than $40,000 for each violation.
(Fish and Game Code § 12025(a).)
This bill would expand this provision to include violations of
the following laws while trespassing on other public or private
land in connection with the production or cultivation of a
controlled substance:
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The crime of unlawful dumping of waste matter or other
specified materials on a public or private highway, road,
right-of-way, easement, private property without consent,
public park or other public property without permission, as
specified, (Penal Code § 374.3), authorizing a civil penalty
of not more than $40,000);
The crime of knowingly causing any hazardous substance to
be deposited into or upon any road, street, highway, alley,
or railroad right-of-way, or upon the land of another,
without the permission of the owner, or into the waters of
this state, as specified, (Penal Code § 374.8(b),
authorizing a civil penalty of not more than $40,000;
The crime of willfully or negligently cutting,
destroying, mutilating, or removing specified vegetation
growing upon state or county highway rights-of-way, or upon
public land or upon land not his or her own, or knowingly
selling, offering, or exposing for sale, or transporting for
sale of the same, as specified, (Penal Code § 384a),
authorizing a civil penalty of not more than $10,000;
The violation of engaging in timber operations without a
license, as specified, (Public Resources Code §§ 4571,
4581), authorizing a civil penalty of not more than $10,000;
The violation of unlawfully taking any bird, mammal,
fish, reptile, or amphibian except as provided, (Fish and
Game Code § 2000), authorizing a civil penalty of not more
than $10,000; and,
The violation of unlawfully possessing any bird, mammal,
fish, reptile, or amphibian, or parts thereof, taken in
violation of any of the provisions of the Fish and Game
Code, (Fish and Game Code § 2002), authorizing a civil
penalty of not more than $10,000.
Violations on Land the Person Owns, Leases or Otherwise Occupies
with the Consent of the Landowner
Current law provides that in cases where the above-enumerated
existing violations in connection with the production or
cultivation of a controlled substance which occurs on land that
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the person owns, leases, or otherwise uses or occupies with the
consent of the landowner, the following civil liability amounts
apply:
A person who violates Section 1602 (described above) is
subject to a civil penalty of not more than $8,000 for each
violation.
A person who violates Section 5650 (described above) is
subject to a civil penalty of not more than $20,000 for each
violation.
A person who violates Section 5652 (described above) is
subject to a civil penalty of not more than $20,000 for each
violation.
Current law provides that each day that a violation of Section
1602, 5650, or 5652 described in this subdivision occurs or
continues to occur shall constitute a separate violation. (Fish
and Game Code § 12025(b).)
This bill would expand the scope of this subdivision to include
civil penalties for the following additional violations of law
committed in connection with the production or cultivation of a
controlled substance which occurs on land that the person owns,
leases, or otherwise uses or occupies with the consent of the
landowner:
The crime of unlawful dumping of waste matter on a public
or private highway, road, right-of-way, easement, private
property without consent, public park or other public
property without permission, as specified (Penal Code §
374.3(a)) is subject to a civil penalty of not more than
$20,000 for each violation;
The crime of unlawful dumping of waste matter in
commercial quantities on a public or private highway, road,
right-of-way, easement, private property without consent,
public park or other public property without permission, as
specified (Penal Code § 374.3(h)(1)) is subject to a civil
penalty of not more than $20,000 for each violation;
The crime of knowingly causing any hazardous substance to
be deposited into or upon any road, street, highway, alley,
SB 165 (Monning )
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or railroad right-of-way, or upon the land of another,
without the permission of the owner, or into the waters of
this state, as specified, (Penal Code § 374.8(b), is
subject to a civil penalty of not more than $20,000 for each
violation;
The crime of willfully or negligently cutting,
destroying, mutilating, or removing specified growing upon
state or county highway rights-of-way, or upon public land
or upon land not his or her own, or knowingly selling,
offering, or exposing for sale, or transporting for sale of
the same, as specified, (Penal Code § 384a), is subject to a
civil penalty of not more than $10,000 for each violation;
The violation of engaging in timber operations without a
license, as specified, (Public Resources Code §§ 4571,
4581), is subject to a civil penalty of not more than $8,000
for each violation;
The violation of unlawfully taking any bird, mammal,
fish, reptile, or amphibian except as provided, (Fish and
Game Code § 2000), is subject to a civil penalty of not more
than $8,000 for each violation.
The violation of unlawfully possessing any bird, mammal,
fish, reptile, or amphibian, or parts thereof, taken in
violation of any of the provisions of the Fish and Game
Code, (Fish and Game Code § 2002), is subject to a civil
penalty of not more than $8,000 for each violation.
This bill would provide that each day that a violation of any of
these sections occurs or continues to occur shall constitute a
separate violation.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential impact
on prison overcrowding. Mindful of the United States Supreme
Court ruling and federal court orders relating to the state's
ability to provide a constitutional level of health care to its
inmate population and the related issue of prison overcrowding,
this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that the
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Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place the
"durable solution" to prison overcrowding "consistently demanded"
by the court. (Opinion Re: Order Granting in Part and Denying in
Part Defendants' Request For Extension of December 31, 2013
Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman
v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed to
reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other reasonable,
appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
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reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
In the almost two decades since California voters passed
Proposition 215, the Compassion Use Act of 1996, the
cultivation of illegal marijuana on California's public and
private lands has exploded. In 2014 alone, the Department of
Fish and Wildlife (DFW) participated in close to 250
marijuana related missions in which 609,480 marijuana plants
were eradicated and 15,839 pounds of processed marijuana was
seized.
Many of these marijuana grow-sites operate on a commercial
scale, leaving behind devastating impacts on the terrestrial
and aquatic habitats they occupy. A cultivation operation of
1,000 plants can require up to 5,000 gallons of water per
day, causing some
growers to routinely divert streams and tributaries to get
enough water. In 2014, DFW found over 135 dams or diversions
in rivers and streams, equating to close to 5,000,000 gallons
of stolen water. These practices exacerbate California's
already historic drought conditions and severely affect Coho
Salmon runs and other fishery populations.
Some of these unregulated grow-sites are responsible for the
release of rodenticides, highly toxic insecticides, chemical
fertilizers, fuels, and hundreds of pounds of waste dumped
into the surrounding habitats and watershed systems. Among
the few grow-sites DFW found last year, were habitats with
over 340,000 pounds of dumped trash and waste and close to 70
gallons of chemicals and fertilizers like D-Con, Malathion,
CarboFuran, and Miracle Grow. The need for flat, fertilized
land to cultivate cannabis plants has also forced some bad
actors to eliminate native vegetation and destroy forested
habitat, often bulldozing acres of land with no regard for
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its ecological impacts. The National Park Service estimates
that the cleanup and reclamation costs of these grow-sites
can cost up to $15,000 per acre, with the average grow-site
being 10-20 acres.
In an attempt to go after these bad actors, Assemblymember
Chesbro carried AB 2284 in the 2012 legislative session,
which established the ability for civil fines to be levied
against those who commit environmental crimes while engaging
in the cultivation of a controlled substance. AB 861 from
2014 expanded this by giving the DFW the ability to assess
these civil fines administratively. The civil fines
collected under this fine structure can be divided up
primarily between enforcement agencies, to cover the cost of
their investigations, and the Timber Regulation and Forest
Restoration Fund, for the purposes of improving forest health
by remediating former marijuana growing operations.
While the current fine structure for these marijuana grow
operations provides some new options in environmental
enforcement, it is limited in its reach. Currently, District
Attorneys or DFW can only assess a civil fine in instances
where a grower has substantially diverted a stream or has
polluted it with petroleum or other deleterious substances.
SB 165 will expand the number and type of environmental
crimes for which a civil fine may be levied against a person
who cultivates a controlled substance. Civil fines will be
able to be brought against growers that engage in: habitat
destruction through land conversion and timber operations
without the proper permits or a Timber Harvest Plan; the
unlawful take or possession of wildlife; the illegal dumping
of trash and hazardous materials; waste disposal in a
commercial scale; and the removing plant life or vegetation
without consent.
2.What This Bill Would Do
As explained in detail above, this bill expands an existing
statutory scheme that imposes civil penalties for certain natural
resource-related law violations committed in connection with the
production or cultivation of a controlled substance either while
trespassing on other public or private land, or committed on land
that the person owns, leases, or otherwise uses or occupies with
the consent of the landowner. Existing law generally covers
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violations involving substantially interfering with a river,
stream, or lake; contaminating waters of the state; and polluting
waters of the state. This bill would add several additional,
similar violations, involving criminal dumping of waste or
hazardous substances; criminal destruction of vegetation;
unlawful timber operations; and unlawfully taking or possessing
any animal, as specified to these provisions. The following
charts briefly depict current law and this bill.
Current Law
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| Violation | Civil Penalty Amount | Civil Penalty |
| | -- Trespassing | Amount - Lawful |
| | | Occupation* |
| | | |
|-----------------------+----------------------+-------------------|
| Substantially |not more than $10,000 |not more than |
| interfering with a |for each violation |$8,000 for each |
| river, stream, or | |violation |
| lake, as specified; | | |
| (Fish and Game Code | | |
| § 1602) | | |
| | | |
|-----------------------+----------------------+-------------------|
| Contaminating waters |not more than $40,000 |not more than |
| of the state, as |for each violation |$20,000 for each |
| specified; (Fish | |violation |
| and Game Code § | | |
| 5650); | | |
| | | |
|-----------------------+----------------------+-------------------|
| Polluting waters of |not more than $40,000 |not more than |
| the state, as |for each violation |$20,000 for each |
| specified; (Fish and | |violation |
| Game Code § 5652) | | |
| | |*each day a |
| | |violation occurs = |
| | |separate violation |
| | | |
| | | |
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SB 165 (Monning )
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What This Bill Would Add
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| Violation |Civil Penalty Amount | Civil Penalty |
| | -- Trespassing | Amount - Lawful |
| | | Occupation* |
| | | |
|-----------------------+---------------------+-------------------|
| Unlawful dumping of |not more than |Not more than |
| waste matter or |$40,000 |$20,000 |
| other specified | | |
| materials on a | | |
| public or private | | |
| highway, road, | | |
| right-of-way, | | |
| easement, private | | |
| property without | | |
| consent, public park | | |
| or other public | | |
| property without | | |
| permission, as | | |
| specified. (P.C. § | | |
| 374.3; 374.3(h)(1)) | | |
| | | |
| | | |
|-----------------------+---------------------+-------------------|
| Knowingly causing |not more than |not more than |
| any hazardous |$40,000 |$40,000 |
| substance to be | | |
| deposited into or | | |
| upon any road, | | |
| street, highway, | | |
| alley, or railroad | | |
| right-of-way, or | | |
| upon the land of | | |
| another, without the | | |
| permission of the | | |
| owner, or into the | | |
| waters of this | | |
| state, as specified. | | |
| (P.C. § 374.8(b) | | |
SB 165 (Monning )
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| | | |
| | | |
| | | |
|-----------------------+---------------------+-------------------|
| Willfully or |not more than |not more than |
| negligently cutting, |$10,000 |$10,000 |
| destroying, | | |
| mutilating, or | | |
| removing specified | | |
| vegetation growing | | |
| upon state or county | | |
| highway | | |
| rights-of-way, or | | |
| upon public land or | | |
| upon land not his or | | |
| her own, or | | |
| knowingly selling, | | |
| offering, or | | |
| exposing for sale, | | |
| or transporting for | | |
| sale of the same, as | | |
| specified. (P.C. § | | |
| 384a) | | |
| | | |
|-----------------------+---------------------+-------------------|
| Engaging in timber |not more than |not more than |
| operations without a |$10,000 |$10,000 |
| license, as | | |
| specified. (Public | | |
| Resources Code §§ | | |
| 4571, 4581) | | |
| | | |
|-----------------------+---------------------+-------------------|
| Unlawfully taking |not more than |not more than |
| any bird, mammal, |$10,000 |$10,000 |
| fish, reptile, or | | |
| amphibian except as | | |
| provided. (Fish and | | |
| Game Code § 2000). | | |
| | | |
|-----------------------+---------------------+-------------------|
| Unlawfully |not more than |not more than |
| possessing any bird, |$10,000 |$10,000 |
| mammal, fish, | | |
SB 165 (Monning )
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| reptile, or | | |
| amphibian, or parts | | |
| thereof, taken in | | |
| violation of any of | | |
| the provisions of | |*each day a |
| the Fish and Game | |violation occurs = |
| Code. (Fish and Game | |separate violation |
| Code § 2002) | | |
| | | |
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3.Criminal Penalties; Suggestion Concerning Criminal Restitution
Orders
This bill would add three crimes to the current Fish and Game
Code civil penalty structure that imposes civil penalties for
violations of law committed in connection with the production or
cultivation of a controlled substance. Existing provisions in
the California Constitution state that all crime victims have the
right to seek and secure restitution from the perpetrators of
these crimes. Restitution must be ordered in every case without
exception. Where a defendant has been ordered to pay
restitution, all money, or property collected from the defendant
must be first applied to satisfy restitution orders. (California
Constitution Article 1 § 28(b)(13)(A)-(C).) In addition,
existing law requires the court to order a defendant to make
restitution to the victim or victims of the defendant's crime,
based on the amount of loss claimed by the victim or victims or
any other showing to the court. The court is required to order
full restitution for the losses caused by the defendant's crime
unless the court finds and states compelling and extraordinary
reasons for not doing so. (Penal Code § 1202.4(f).) In addition,
one of the Penal Code provisions this bill would add expressly
authorize the court to impose restitution-type orders, such as
removing or paying for the removal of waste (Penal Code § 374.3).
The author and members of the Committee may wish to discuss
whether any civil penalties imposed as a result of this provision
should be offset by any restitution ordered in a criminal case
which is the basis for a civil penalty.
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SHOULD THIS AMENDMENT BE MADE?
In addition, the author and members of the Committee may wish to
discuss how this bill's civil penalty provisions, which range
from $10,000 to $40,000, compare in terms of proportionality to
existing Fish and Game Code sanctions for similar violations.
(For example, the statute authorizing civil penalties of not more
than $25,000 for releasing specified pollutants into the state's
waters. (Fish and Game Code §§ 5650 et seq.))
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