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