Cannabis farmers or criminals? Enforcement-first approaches fuel disparity and hinder regulation
California Agriculture 73(3):185-193. https://doi.org/10.3733/ca.2019a0017
Published online September 12, 2019
Since California's cannabis legalization, localities have played a central role in determining the regulatory terms of where, how and within what legal bounds cannabis cultivation occurs. Siskiyou County, a rural, conservative and majority white county in Northern California, chose not to recognize cannabis cultivation as agriculture. It drew up highly restrictive cannabis cultivation regulations, largely under the purview of law enforcement rather than civil agencies. Hmong-American cultivators, made highly visible through enforcement practices, policy forums and media discourses, have borne the brunt of this regulatory regime. Cannabis policy, especially in its ethnic-racial dimensions, has become symbolic of broader anxieties about cultural and agricultural change. We employed ethnographic methods to research the formation and enforcement of Siskiyou's restrictive cannabis cultivation regulations, and their differential effects across local populations. We found that the county's law enforcement–first regulatory approach blurred civil and criminal lines, made some cultivators more visible and vulnerable to enforcement, and promoted criminalizing approaches to cultivators, even among civil regulatory agencies. These developments hinder the ability of agencies (including the California Department of Food and Agriculture and the California Department of Fish and Wildlife) to ameliorate negative social and ecological effects of cannabis cultivation through civil regulation, support and services.
“It is not agriculture in any way, shape or form,” said a senior Siskiyou County agricultural official in response to our questions about cannabis cultivation. Away from the green valleys of irrigated alfalfa and pasture, in the dry rocky hills, a new set of producers has gained public attention, who, the county agricultural official asserted, “are not farmers.” According to Siskiyou's Planning Division, cannabis is a unique crop that “differs from … traditional crops like strawberries or alfalfa in that cannabis remains classified by the federal government as a Schedule I drug” (Siskiyou County 2017a, 3). Despite cannabis now being a legal commodity in the state, in many counties, including Siskiyou County, cannabis cultivation has been disqualified as agriculture and substantively recriminalized.
Many cannabis farms in Siskiyou County are located on mostly undeveloped subdivision lots, which are often sparsely vegetated, dry, hilly and small, making them highly visible from public roads, horseback, neighboring plots, helicopters and Google Earth.
With the passage of Proposition 64 (see page 106), state voters elected to integrate cannabis into civil regulation. The California Department of Food and Agriculture (CDFA) oversees state-licensed cannabis cultivation and defined it as agriculture (California State Legislature 2017a). Prior to the possibility of state licensure for cultivators, however, counties can decide on other designations and implement strict limitations. In effect, local governments have become gatekeepers to whether and how cultivation of personal, medical or recreational cannabis can occur and the repercussions of noncompliance. When cannabis is denied a consistent status as agriculture, despite being a legal agricultural commodity according to the state, localities can determine who counts as a farmer and who is considered compliant, noncompliant and even criminal.
In Siskiyou County's unincorporated areas, the Sheriff's Office now arbitrates between the effectively criminal and agricultural. Paradoxically for this libertarian county, the furor around cannabis has seen calls for government intervention, and has led to officials passing highly stringent cannabis cultivation regulations that have been enforced largely by law enforcement, muddying the line between noncompliance and criminality. These strict regulations produced a situation where “not one person” has been able to come into compliance, according to a knowledgeable government official. Nonetheless, at the sheriff's urging, Siskiyou declared a “state of emergency” due to “nearly universal non-compliance” (Siskiyou County 2017b), branding cannabis cultivation an “out-of-control problem.”
Such a strong reaction against cannabis can be understood in terms of cannabis's potential to reorganize Siskiyou's agricultural and economic landscape. According to some estimates, there are now approximately twice as many cannabis cultivators as noncannabis farmers and ranchers in Siskiyou (Siskiyou County 2017b; St. John 2017; USDA NASS 2017), a significant change from just a few years ago. Although cannabis has been cultivated in this mostly white county for decades, since 2015 it has become associated with an in-migration of Hmong-American cultivators. (Though interviewees referred to themselves often as “Hmong,” we use the hyphenated descriptor to mark their status as U.S. citizens and residents.) Made highly visible through enforcement practices, policy forums and media discourses, Hmong-Americans have become symbolically representative of the “problem.” This high visibility, however, obscures a deeper issue, what Doremus et al. (2003) see as a nostalgic, static conception of rural culture that requires defensive action as a bulwark against change. Such locally-defined conceptions need to be understood (Walker 2003), especially in how they are defined and defended and what effects they have on parity among farmers growing different types of crops.
Our goals in this study were to consider the consequences of an enforcement-first regulatory approach — a common regulatory strategy across California — and its differential effects across local populations. Using Siskiyou County as a case study, we paid attention to the public agencies, actors and discourses that guided the formation and enforcement of restrictive cannabis cultivation regulations as well as attempts to ameliorate perceptions of racialized enforcement. This study attends to novel postlegalization apparatuses, their grounding in traditional definitions of (agri)culture and the ways these dynamics reactivate prohibition.
We used qualitative ethnographic methods of research, including participant observation and interviews. In situations of criminalization, which we define not only as the leveling of criminal sanctions but being discursively labeled or responded to as criminal-like (Schneider and Schneider 2008), quantitative data can be unreliable and opaque, which necessitates the use of qualitative ethnographic methods (Clatts et al. 2002; Ferrell and Hamm 1998).
In 2018–2019, we talked to a wide range of people — including cannabis growers from a diversity of ethnic backgrounds, government officials, businesspeople, subdivision residents, farm service providers, medical cannabis advocates, realtors, lawyers, farmers and ranchers, and, with the assistance of a Hmong-American interpreter, members of the Hmong-American community. We also analyzed public records and county ordinances, Board of Supervisors meeting minutes and audio (meetings from 2015 to 2018), Sheriff's Office press releases and documents, related media articles and videos, and websites of owners' associations in the subdivisions where cannabis law enforcement efforts have focused.
Some cannabis cultivators regarded us suspiciously and were hesitant to speak openly, an unsurprising phenomenon when researching hidden, illegal and stigmatized activities, like “drug” commerce (Adler 1990; Bourgois 1995; Moore 1993; Northcote and Moore 2010). This circumspection was most intense among Hmong-American growers on subdivisions, who had been particularly highlighted through enforcement efforts and local, regional and national media accounts linking their relatively recent presence in Siskiyou to cannabis growing.
Human subjects in this research are protected under the Committee for Protection of Human Subjects, protocol number 2018-04-1136 (approved May 21, 2018), of the Office for Protection of Human Subjects at UC Berkeley.
(Agri)culture and cannabis
Siskiyou is a large rural county located in the mid-Klamath River basin in Northern California (fig. 1). Since the mid-19th century, in-migrants have historically engaged in agriculture, predominantly livestock grazing and hay production, and natural resource extraction, primarily timber and mining (Doremus et al. 2003). Public records demonstrate that although the value of the county's agricultural output and natural resource extraction is declining, these cultural livelihoods still shape the area's dominant rural values of self-reliance, hard work and property rights (CED 2012; Doremus et al. 2003; NoRTEC 2016). For instance, one county document stated that Siskiyou's cultural-economic stability depends on nonintervention from “outside groups and governments” and residents should be “subject only to the rule of nature and free markets” (Siskiyou County 1996, 25). Another document, a “Primer for living in Siskiyou County” from the county administrator, outlined “the Code of the West” for “newcomers,” asserting that locals are “rugged individuals” who live “outside city limits,” and that the “right to be rural” protects and prioritizes working agricultural land for “economic purpose[s]” (Siskiyou County 2005).
FIG. 1. Siskiyou County is a large, rural California county. Its residents are mostly white. Compared to other California counties, it has relatively high unemployment, a low violent crime rate and low median household income.
We heard a common refrain that localities will eventually succumb to the allure of a taxable, profitable cannabis industry. Indeed, interviewees in Siskiyou universally reported economic contributions from cannabis cultivation, especially apparent in rising property values and tax rolls and booming business at horticultural, farm supply, soil, generator, food and hardware stores (see Stoa 2018). However, a belief in an inevitable free market economic rationality may underestimate the deep cultural logics that have historically superseded economic gains in regional resource conflicts (Doremus et al. 2003). As one local store owner told us, “I'd give up this new profit in a heartbeat for the benefit of our society.”
Many long-time farming and ranching families remain committed to agricultural livelihoods for cultural reasons (Reinhart and Barlett 1989), even as the economic viability of family farms is threatened by increasing farmland financialization (Fairbairn 2014), corporate consolidation (Hossein and Elsheikh 2015) and biophysical decline (Pathak et al. 2018). Many interviewees felt that the recent rapid expansion of county cannabis cultivation and corresponding demographic changes were a visible marker of broader tensions of (agri)cultural continuity and endangerment. As the sheriff expressed, cannabis cultivation would “jeopardize our way of life … [and] the future of our children” (SCSO 2017a).
This sense of cultural jeopardy (see Tarlock 1999), echoed by numerous interviewees, materialized in a range of negative quality-of-life comments about cannabis cultivation: noisy generators, increased traffic, litter and blighted properties, and unsafe conditions for residents. Noncannabis farmers also reported farm equipment and water theft, livestock killed by abandoned dogs, wildfire danger, illicit chemical use and poisoned wildlife.
Some noncannabis farmers expressed a sense of regulatory unfairness — that their farms were subject to onerous water and chemical use regulations while cannabis growers “don't need to follow the government's regulations.” Enabling cannabis cultivators to pursue state licensure would facilitate just such civil regulation, but some feared that regulating this crop as agriculture would threaten “the loss of prime agriculturally productive lands for traditional pursuits” (Siskiyou County 2017a, 4). If nothing less than the county's culture and agricultural order were considered at stake, it is no wonder that absolute, even prohibitionist, solutions emerged in Siskiyou, with the Sheriff's Office having a central role in defending local (agri)culture.
Early, collaborative regulation
Siskiyou's sparsely populated landscape has been home to illegalized cannabis cultivators at least since the late 1960s, largely in remote, forested, and public lands in the western part of the county. Medical cannabis's decriminalization in 1996 inaugurated a modest expansion of cannabis gardens throughout the county (fig. 2). However, for the next 19 years, Siskiyou did not establish regulations for medical cannabis, in line with locally dominant ideologies of personal freedoms and property rights. Instead, the county relied on de facto management of cultivation by law enforcement and the court system's strict interpretation of state law (Boerger 2007).
|1996||Voters approve Proposition 215, Compassionate Use Act.|
|2004||Medical Marijuana Program Act provides statewide guidance for medical marijuana.|
|2014||Siskiyou Alternative Medicine founded to advocate for medical marijuana rights.|
|2014–2015||Siskiyou Planning Division holds public workshops about medical cannabis.|
|March 2015||Agricultural commissioner states cannabis is not agriculture (Siskiyou County 2015).|
|April 2015||Siskiyou’s first medical marijuana regulations passed.|
|2015||Interviewees describe and property records show increased Hmong-American in-migration to the county (from other states or California towns).|
|Late 2015||Hmong-Americans begin to attend county Board of Supervisor meetings, and organize countywide advocacy.|
|September 2015||Medical Marijuana Regulation and Safety Act passes, regulating medical cannabis businesses at state level.|
|December 2015||Siskiyou’s Board of Supervisors bans outdoor cultivation and tightens cannabis ordinances and enforcement; advocates present 1,500 signatures in opposition.|
|January 2016||Advocates collect 4,000 signatures to place stricter ordinances on 2016 county voter ballot.|
|March 25, 2016||Sheriff’s Office releases strategic plan with state and federal agencies to “attack illegal grows” and enforce civil regulations.|
|May 25, 2016||Sheriff’s Office releases study reporting rising crime rates and attributes them to “the #1 public enemy to Siskiyou citizens . . . criminal marijuana cultivation.”|
|June 5, 2016||Sheriff’s Office accompanies state voter fraud investigators to properties of Hmong-Americans, resulting in voter intimidation lawsuit.|
|June 7, 2016||Siskiyou voters approve more restrictive cannabis cultivation ordinances.|
|July 2016||Sheriff’s Office founds Siskiyou Interagency Marijuana Investigation Team with district attorney, soon enlists National Guard, Cal Fire and California Highway Patrol in cannabis enforcement activities.|
|September 2016||Siskiyou Alternative Medicine brings lawsuit against county alleging constitutional violations and harassment by Sheriff’s Office.|
|November 2016||California and Siskiyou voters approve Proposition 64, Adult Use of Marijuana Act (AUMA) legalizing recreational cannabis.|
|Winter 2016–2017||Three people die of carbon monoxide in substandard housing on cannabis grow sites.|
|June 2017||State merges medical and recreational regulatory systems in the Medical and Adult Use Cannabis Regulation and Safety Act (MAUCRSA).|
|June–December 2017||Local, regional and national papers highlight conflict between Hmong-Americans and law enforcement.|
|July 2017||Planning Division submits study to supervisors on potential for commercial recreational and medical regulatory system, recommends against agricultural zoning.|
|August 8, 2017||Siskiyou passes moratorium on all recreational and medical cannabis commerce.|
|August 2017||Cultivators in cannabis operation arrested for bribing sheriff for exemption from county cannabis ban.|
|September 5, 2017||Siskiyou issues state of emergency declaration regarding cannabis cultivation.|
|September 16, 2017||CDFA declares “cannabis is an agricultural product.”|
|September 2017||Hmong-American voter intimidation lawsuit against county dismissed.|
|October 2017||City of Mt. Shasta, in Siskiyou, passes municipal ordinance allowing cannabis commerce.|
|December 2017||Siskiyou’s City of Dunsmuir passes municipal ordinance allowing cannabis commerce.|
|January 2018||California’s cannabis commerce regulations take effect.|
|April 2018||Siskiyou’s City of Weed passes municipal ordinance allowing cannabis commerce.|
|May 2018||Sheriff’s Office hosts first Hmong-American and County Leaders Town Hall Meeting.|
|Summer 2018||Sheriff’s Office continues building enforcement alliances with other agencies (County Animal Control Department, California Department of Toxic Substances Control, State Water Resources Control Board, California Department of Fish and Wildlife).|
|June 2018||Sheriff’s Office hires first Hmong-American sheriff’s deputy in Siskiyou.|
|August 2018||Supervisors tighten penalties, timeframes and appeal processes for civil code violations, and formalize and expand powers for enforcement officers.|
|June 2019||County implements permanent prohibition of all commercial cannabis activity in unincorporated areas.|
FIG. 2. Timeline of cannabis activities in Siskiyou County.
In 2015, informed by public workshops held by the Siskiyou County Planning Division, supervisors passed the county's first medical cannabis ordinance, which seemingly balanced concerns of medical cultivators and other county residents. Regulation would be overseen by the Planning Division, which placed conditions on cultivation (e.g., property setbacks), limited plant numbers to parcel size and would establish an administrative abatement and hearing process for complaints.
The Planning Division, however, had been without code enforcement officers since 2008 budget cuts. Though the county authorized the hiring of one civil code officer in 2015, the Sheriff's Office felt that the Planning Division “needed outside help” and moved to assist. Soon, the county's limited abatement capacities were overwhelmed by vigorous enforcement and a wave of complainants. County supervisors, responding to the sheriff's 2015 reports on the “proliferation” of cannabis gardens on private property, moved to heighten penalties for code violations, place numerous new restrictions on indoor growing and ban all outdoor growing (SCSO 2015; table 1).
These strict county measures, which discarded and replaced publicly developed regulations, stoked reaction. When the Siskiyou County Board of Supervisors met in December 2015 to vote on these measures, advocates and cultivators presented 1,500 signatures to forestall its passage, a supermajority (110–6) of attending residents indicated opposition, and supervisors had to curtail 3 hours of public comment to vote. Despite this showing, supervisors passed the restrictive measures, prompting cannabis advocates to collect 4,000 signatures in 17 days to place the approved ordinances on the June 2016 ballot. Meanwhile, the Sheriff's Office enforced the new stricter regulations (SCSO 2016a).
Blurring civil and criminal lines
The Sheriff's Office assumption of code enforcement blurred the line between noncompliance with civil codes and criminal acts. Stricter ordinances, still in effect in Siskiyou, created a broad, nearly universal category of “noncompliance.” No one we interviewed, including officials at the Planning Division and Sheriff's Office, knew of a single cultivator officially in compliance. One interviewee estimated that growing 12 indoor plants (the maximum allowed for personal, nonmarket use) would cost $40,000 in physical infrastructure, in addition to numerous licensing and inspections requirements, effectively prohibiting self-provisioning.
The Sheriff's Office notified the public that it would initiate criminal charges against “noncompliant” cultivators, specifically those suspected of cultivation for sale (e.g., growing an amount “reasonably inconsistent with” medical needs), child endangerment (e.g., presence of a minor near a Schedule I drug) (SCSO 2015) or suspected drug trafficking (the criteria for which includes being in possession of too much unlicensed cannabis) (Return to top