RE: Settlement Communication in the matter of Humboldt-‐Mendocino Marijuana Advocacy Project v. County of Humboldt et al., CV-‐160171
Dear Mr. Blanck, Mr. Ellinwood, and Ms. Duke:
Thank you for agreeing to so promptly convey this offer to the County Board of Supervisors. Humboldt-‐ Mendocino Marijuana Advocacy Project (“HUMMAP”) is concerned about the implementation of County Ordinance 2544 (“Ordinance”), and is therefore considering seeking a preliminary injunction. However, as was mentioned to Mr. Ellinwood on Friday, HUMMAP is also optimistic that there is common ground between the parties such that a satisfactory resolution may be reached that accommodates the concerns of all parties. As such, please consider this letter an inadmissible settlement communication as described at California Evidence Code sections 1152 and 1154.
Proposed Terms of Settlement:
CUMULATIVE IMPACTS RESULT IN UNSUSTAINABLE INDUSTRY
HUMMAP’s greatest concern is the massive cumulative impacts of this Ordinance, particularly the incremental impacts over the already troublesome baseline in the County (which must include the continued expansion of grows not covered by this Ordinance), as amply demonstrated in the administrative record. Cumulative impacts have not been adequately addressed in the MND and as a result the Ordinance does not prevent further deterioration of an already bad situation. Specifically, some of these impacts are:
· Impacts to protected fish and wildlife
- Intensified danger of wildfires, fuel spills, and lube dumps
· Widespread removal, alteration, and fragmentation of wildlife habitat
- Expansion of area in cultivation and concurrent expansion of use of fertilizers and pesticides
- Zoning Clearance Certification shall be available to operations 2,000 square feet or smaller only
- Operations larger than 5,000 square feet shall be prohibited in any forestland zone
- Inspection fees shall include a significant mileage-‐from-‐County-‐road charge to discourage habitat fragmentation, roads, and cultivation in remote locations, and to fund inspection of that road for traffic and access impacts
SIZE AND INTENSITY OF OPERATIONS ENCOURAGED BY ORDINANCE RISE TO LEVEL OF SIGNIFICANCE
Larger operations result in management priorities that sacrifice environmental quality (as well as worker well-‐being, product quality, and product reputation). The Ordinance encourages expansion and intensification of the industry, for example by:
· Allowing a grow marginally larger than one acre to have a grow one acre in size
- Allowing even such small grow parcels to include a processing facility or other features
- Providing for existing grows to expand to the limit of their category
- Reduce the incentive multiplier for RRR moves from 4X to 2X
- Limit the extent of existing grow to size as of January 1, 2016—addressing any override authority that the Planning Director may actually have or assert he has (except RRR)
BECAUSE RECORD ESTABLISHES UNSUSTAINABLE BASELINE, ORDINANCE SHOULD ONLY PROVIDE INCENTIVE TO DECREASE SIZE OF INDUSTRY, NOT INCREASE ITS SIZE
Smaller grows generally mean smaller and less serious environmental impacts (ponds, roads, etc.). Fee structure should encourage smaller (under 2,000 square feet) operations and should discourage expansion.
- Amend 4.8.10 to add limitation requiring that no person may hold permits under this ordinance on more than one parcel.
- Limit the number of grow permits per parcel to (1) one Indoor or (2) one Mixed and one Outdoor
- Prohibit dispensaries from holding grow permits (other than for clone production).
- Small collectives for joint marketing which limit membership exclusively to grows 2,000 square feet or less should not be subject to the grow restrictions of
- Grows under 2,000 square feet—those covered by Zoning Clearance Certificates—should be assessed annual fees of $80 or less per year
- Grows over 2,000 square feet should be assessed an annual fee on a graduated per-‐foot basis (in addition to inspection fees)
- The money collected from grows in excess of 2,000 square feet should be the primary source of funds to run this program because they will be the most costly to administer and inspect
- Fees should be greater for any area expanded over the January 1, 2016
GENERATOR-‐DEPENDENT OPERATIONS’ OUTSIZED IMPACTS
Generator-‐dependent operations have outsized risk and environmental effect compared to less intense cultivation methods. These effects include, but are not limited to:
· Intensified fire danger,
- Fuel spills and lube dumping;
- Noise pollution in forestlands where they impact habitat availability, including for protected species, and
- Intensified climate impacts.
These highly significant impacts are not adequately addressed in the Mitigated Negative Declaration. The associated impacts of light and noise on wildlife are poorly assessable under ordinance protocols and noise standards are set for human tolerances that are too high for wildlife.
- Prohibit use of generators in forestlands for marijuana growing or processing
- Use of generators may occur only where a forestland exemption permit is not required, and at least 7 mile away from Spotted Owl activity areas or Marbled Murrelet nesting areas, as demonstrated by consultation with the U.S. Fish and Wildlife Service or the California Department of Fish and Wildlife
- Use of generators conditioned upon access and suppression provisions, periodic inspection, and approval by a responsible fire suppression authority
CLIMATE CHANGE NOT ADEQUATELY ADDRESSED
There is inadequate discussion of the enormous addition to carbon release caused by grow lights, dehumidifiers, and other growing and processing equipment, as well as transportation for dispersed remote locations. Forest removal as well is authoritatively said to contribute 15% to global warming. Current carbon credit language in the Ordinance is totally without standard.
- The parties shall agree to a standard for carbon credits used for Ordinance compliance
- Prohibit Mixed or Indoor light use off-‐grid and in forested areas that are generator dependent
- Require Indoor and Mixed operators to report their energy usage to the County on a quarterly basis
- Annual fees shall include penalties for exceeding energy caps (based on per-‐square foot average for energy-‐efficient operation)
DEEPLY FLAWED CEQA ANALYSIS
The Mitigated Negative Declaration, which was rushed, is rife with flaws, incorrect conclusions, and is otherwise incomplete and erroneous. No future CEQA analysis should tier to this flawed document.
- The Mitigated Negative Declaration should explicitly recite that it is based upon severely deficient information
- The Mitigated Negative Declaration should require, and the County should commit to, establishing sufficient fees from the Ordinance to cover cost of studying and understanding the industry over the ensuing years
LIMITING NEGATIVE ENVIRONMENTAL IMPACT OF UNTRAINED GROWERS
New growers, particularly those with little experience that are part of the recent and continuing profit-‐ motivated Greenrush, are likely to be ignorant of environmentally sound farming practices. Permitting these entities threatens to deepen the negative environmental impact of the industry.
- Condition issuance of permits for new grows upon a one-‐day certified training in correct farming practices, or upon a comprehensive written test on the same
- Condition permit retention subsequent to notice of violation upon a similar class and/or test
FEES AND COSTS
To date, HUMMAP has expended relatively modest resources towards litigation-‐related attorney fees and costs, including for researching, filing, and serving this lawsuit, to which it would be entitled reimbursement under Code of Civil Procedure section 1021.5 if it successfully proceeds. These fees and costs are expected to increase substantially with preparation of the administrative record and briefing.
- Payment of the costs and fees associated with bringing this case, negotiating a settlement agreement, and seeking court approval of the
Please also consider this letter a confirmation of each party’s agreement to accept service in this matter by electronic mail, and that completed electronic service need not be followed by hard copy. Mr.
Ellinwood shall accept service on behalf of respondents, and Ms. Doughty shall accept service on behalf of petitioner.
Agreement to Extend Time to Prepare Administrative Record
In addition, on March 4, 2016, Mr. Ellinwood and Ms. Doughty agreed that in order for the parties to focus on exploration of settlement potential they would agree to a reasonable expansion of the time permitted to prepare the administrative record.
Public Resources Code 21167.8 Settlement Meeting
I can be available in Eureka on April 1 or 4, 2016 for a settlement meeting.
Please do not hesitate to contact me if clarification or further discussion of the above settlement points is required or desired, or if there has been any misunderstanding regarding service or preparation of the administrative record.
Rachel S. Doughty Greenfire Law
Attorney for HUMMAP