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 SB 165 Page 2 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). SB 165 Page 3 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). SB 165 Page 4 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). SB 165 Page 5 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).) SB 165 Page 6 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. SB 165 Page 7 "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 SB 165 Page 8 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. SB 165 Page 9 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 SB 165 Page 10 ----------------------------------------------------------------- | 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 | | | SB 165 Page 11 | 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 | | | SB 165 Page 12 | 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 SB 165 Page 13 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%). SB 165 Page 14 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