BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 165


                                                                    Page  1





          Date of Hearing:  June 16, 2015


          Counsel:               Gabriel Caswell








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          165 (Monning) - As Amended April 14, 2015





          SUMMARY:  Adds 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.   
          Specifically, this bill:  

          1)Expands provisions of law which impose civil penalties for  
            Fish and Game Code violations committed while trespassing on  
            public or private lands, to include violations of the  
            following laws while trespassing on other public or private  
            land in connection with the production or cultivation of a  








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            controlled substance:

             a)   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, authorizing a civil penalty of up to $40,000.   
               (Pen. Code, § 374.3)

             b)   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, authorizing a civil  
               penalty of up to $40,000.  (Pen. Code, § 374.8(b).)

             c)   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, authorizing a civil  
               penalty of up to $10,000.  (Pen. Code, § 384a)

             d)   The violation of engaging in timber operations without a  
               license, as specified, authorizing a civil penalty up to  
               $10,000.  (Pub. Resources Code, §§ 4571, 4581)

             e)   The violation of unlawfully taking any bird, mammal,  
               fish, reptile, or amphibian except as provided, authorizing  
               a civil penalty of not more than $10,000.  (Fish and Game  
               Code, § 2000).

             f)   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, authorizing a civil penalty of up to $10,000.  (Fish  
               and Game Code, § 2000).









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          2)Expands the scope of civil penalties where violations in  
            connection with the production or cultivation of a controlled  
            substance occur on land that the person owns, leases, or  
            occupies with the consent of the landowner to include the  
            following additional offenses:

             a)   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 is subject to a civil  
               penalty of up to $20,000 for each violation.  (Fish and  
               Game Code § 2000).

             b)   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, is subject to a civil penalty of up to $20,000  
               for each violation.  (Pen. Code, § 374.3(h), subd. (1).)

             c)   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, is subject to a civil penalty of up to  
               $20,000 for each violation.  (Pen. Code, § 374.8(b).)

             d)   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, is subject to a civil penalty of up to $10,000  
               for each violation.  (Pen. Code, § 384a).

             e)   A violation of engaging in timber operations without a  
               license, as specified, is subject to a civil penalty of up  
               to $8,000 for each violation.  (Pub. Resources Code, §§  
               4571, 4581).








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             f)   A violation of unlawfully taking any bird, mammal, fish,  
               reptile, or amphibian except as provided, is subject to a  
               civil penalty of up to $8,000 for each violation.  (Fish &  
               G. Code, § 2000).

             g)   A 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, is subject to a civil penalty of up to $8,000 for  
               each violation.  (Fish & G. Code, § 2002).

          3)Provides that each day that a violation of any of these  
            sections occurs or continues to occur shall constitute a  
            separate violation, as specified.

          4)Specifies that any civil penalty imposed shall be offset by  
            the amount of any restitution ordered by a criminal court, as  
            specified.  

          EXISTING LAW:  

          1)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.   
            Additionally describe a process for issuing and serving  
            complaints, conducting hearings, and obtaining a review of a  
            final order.  (Fish & G. Code, § 12025).  


          2)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:  (Fish & G. Code, § 12025(a).









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             a)   Substantially interfering with a river, stream, or lake,  
               as specified; up to $10,000 for each violation.  (Fish & G.  
               Code, § 1602).


             b)   Contaminating waters of the state, as specified; up to  
               $40,000 for each violation; (Fish & G. Code, § 5650) and,


             c)   Polluting waters of the state, as specified; up to  
               $40,000 for each violation. (Fish & G. Code, § 5652).


          3)Provides that in cases where specified violations 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 following civil liability amounts apply:


             a)   Substantially interfering with a river, stream, or lake,  
               as specified; up to $8,000 for each violation.  (Fish & G.  
               Code, § 1602)


             b)   Contaminating waters of the state, as specified; up to  
               $20,000 for each violation.  (Fish & G. Code, § 5650)


             c)   Polluting waters of the state, as specified; up to  
               $20,000 for each violation.  (Fish & G. Code, § 5652)


          4)Provides that each day that a violation of Section 1602, 5650,  
            or 5652 occurs or continues to occur shall constitute a  
            separate violation, as specified. (Fish & G. Code, §  
            12025(b).)









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          FISCAL EFFECT:  Unknown

          COMMENTS: 

          1)Author's Statement:  According to the author, "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 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.








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            "In an attempt to go after these bad actors, Assemblymember  
            Chesboro 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. SB 861 from 2014  
            expanded this by giving the Department of Fish and Wildlife  
            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, the courts  
            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)Background:  According to the background submitted by the  
            author, "In the 2012 legislative session Assemblymember  
            Chesboro carried AB 2284, which established the ability for  
            the courts to assess civil fines against those who commit  
            environmental crimes while engaging in the cultivation of a  
            controlled substance. SB 861, which was a budget trailer bill  
            in 2014, expanded this ability, by giving the Department of  
            Fish and Wildlife the authority to assess civil fines  
            administratively. The current fine structure, however, is  








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            limited in its reach, as the courts and 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. These acts are only a small piece of  
            the many destructive environmental laws that are broken by  
            illegal marijuana growers. 

            "SB 165 will expand the number and type of environmental  
            crimes for which a civil fine may be levied against these  
            growers, so that fines can be brought against those who also  
            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 removal of plant life  
            or vegetation without consent."


          3)Expansion of Civil Penalties for Criminal Offenses Related to  
            Marijuana Cultivation:  
            This bill expands the list of civil penalties for natural  
            resource crimes that are related to the production or  
            cultivation of controlled substances that are committed while  
            trespassing on public or private land, or are committed on  
            land that the person occupies with the consent of the  
            landowner.  
            
            Existing law, as passed by AB 2284 (Chesbro), Chapter 390,  
            Statutes of 2012, covers crimes involving substantially  
            interfering with a natural waterway, as well as contaminating  
            or polluting waters.  

            This bill would add 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.









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                                     Current Law

          


           ------------------------------------------------------------------ 
          |       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 |
          |                       |                      |                   |
           ------------------------------------------------------------------ 
                                          


                               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    |                     |                   |








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          |  owner, or into the   |                     |                   |
          |  waters of this       |                     |                   |
          |  state, as specified. |                     |                   |
          |  (P.C. § 374.8(b)     |                     |                   |
          |                       |                     |                   |
          |-----------------------+---------------------+-------------------|
          |  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  |                     |                   |








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          |  provided.  (Fish and |                     |                   |
          |  Game Code § 2000).   |                     |                   |
                                                                                |                       |                     |                   |
          |-----------------------+---------------------+-------------------|
          |  Unlawfully           |not more than        |not more than      |
          |  possessing any bird, |$10,000              |$10,000            |
          |  mammal, fish,        |                     |                   |
          |  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)         |                     |                   |
          |                       |                     |                   |
          |                       |                     |                   |
          |                       |                     |                   |
           ----------------------------------------------------------------- 


          4)Public Lands: Public lands under the jurisdiction of the  
            Department of Parks and Recreation, the Department of Fish and  
            Game, the Department of Forestry and Fire Protection, the  
            State Lands Commission, a regional park district, the United  
            States Forest Service and the Bureau of Land Management are  
            specified.

          5)Argument in Support:  According to the California Fish and  
            Game Wardens' Association, "In California there has been a  
            dramatic increase in marijuana cultivation on public and  
            private lands over the last decade which has created an  
            unprecedented environmental crisis in California.  Game  
            Wardens' mission is to protect the wildlife and habitats  
            within California, many of which continue to suffer at the  
            expense of environmental damages associated with marijuana  
            cultivation.  Many of these unregulated grow-sites have been  
            found to discard hundreds of pounds of highly toxic chemicals,  
            fertilizers, and fuels into the surrounding habitats and  








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            watershed systems.  As you may know, the California Department  
            of Fish and Wildlife (CDFW) created the Marijuana Enforcement  
            Team (MET) and a Watershed Enforcement Team (WET) to more  
            specifically combat these crimes, these criminals, and their  
            significant impacts on CA's natural resources.  Game Wardens  
            staffing these teams have made substantial positive impacts in  
            the landscape of environmental enforcement.  Game Wardens'  
            front-line role in these operations greatly increases their  
            health and safety risks, due to the increased confrontation  
            with armed suspects and exposure to toxic chemicals among  
            other factors.  
            
            "SB 165 will expand the existing authority of local law  
            enforcement agencies and the CDFW to assess civil fines in  
            cases where marijuana growers dump waste of hazardous  
            substances, unlawfully take game, remove plants and native  
            vegetation, or destroy forested habitats.  The money from  
            these fines will support habitat reclamation of the grow  
            sites, which according to the National Park Service, can cost  
            more than $15,000 an acre.  We recognize the need to increase  
            the penalties that are assessed to those who destroy  
            California's natural habitat when they cultivate a controlled  
            substance, such as marijuana, and CFGWA strongly supports SB  
            165."

          6)Prior Legislation:  AB 2284 (Chesbro), Chapter 390, Statutes  
            of 2012, established civil fines for environmental crimes  
            relating to the cultivation of controlled substances.  Added   
            new civil penalties for violation of specified sections of the  
            Fish & Game Code during the cultivation or production of  
            controlled substances on specified public lands and private  
            timberland production zones as follows:  Up to $10,000 per  
            violation for stream bed alterations.  Up to $40,000 per  
            violation for either water pollution or trash disposal.   
            Divided any civil penalty collected for these specified  
            violations between the county in which the violation occurred  
            (30%), the investigating agency as reimbursement (30%), and  
            the agency cleaning up the site (40%).









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          REGISTERED SUPPORT / OPPOSITION:

          Support

          California College and University Police Chiefs 
          California District Attorneys Association
          California Fish and Game Wardens' Association  
          California Peace Officers' Association 
          California Police Chiefs Association 
          Central Coast Forest Association 
          Conscious Cannabis Ventures 
          County of Santa Cruz 
          Heritage Associates 
          Rural County Representatives of California 
          Sierra Club California 


          Opposition
          
          None 




          Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)  
          319-3744