A federal appeals panel has overturned a lower court’s ruling that halted a class action accusing Humboldt County of improperly using drones to search for illegal marijuana crops.
Landowners who live in forests around Eureka allege officials in the far northern California region accused them of illegally growing marijuana without sufficient evidence, triggering potentially millions of dollars in fines and limiting their ability to improve their properties.
The complaint asserts the county designed its code-enforcement policy after the state legalized recreational marijuana. By creating an abatement program, the county can cite landowners for nuisances or for violating permitting rules and, if the county alleges a connection to improper marijuana cultivation, “the daily fines automatically jump from a few hundred dollars to between $6,000 and $10,000 per violation, regardless of whether the violations pose any harm to the community.”
Corinne and Doug Thomas are suing Humboldt County, claiming they face massive unconstitutional fines
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Primary evidence the county uses to write citations, according to the complaint, are satellite images of otherwise “harmless things like greenhouses” with no probable cause or further investigation. That can generate a $10,000 fine for the greenhouse, another $10,000 fine for unpermitted marijuana cultivation and a $10,000 daily fine alleging the landowner built the greenhouse after grading without a permit.
Plaintiffs in the action include Humboldt County landowners Blu Graham, Rhonda Olson, and married couple Corrine Morgan Thomas and Doug Thomas.
U.S. District Magistrate Judge Robert Illman, of the Northern District of California in Eureka-McKinleyville, dismissed the claim on the grounds the plaintiffs had yet to pay a fine, depriving of them of standing, while also saying the timing wasn’t right for either their Eighth Amendment claim or constitutional challenges to the relevant county codes. When the case reached the U.S. Ninth Circuit Court of Appeals, the only issue was the Eighth Amendment’s excessive fines clause.
Ninth Circuit Judge Richard Paez wrote the panel’s opinion, filed Dec. 30, with concurrence from Judges Jennifer Sung and Sidney Fitzwater, the latter of who is a federal court judge from Texas sitting by designation.
“There are clear and concrete injuries stemming from the imposition of the penalties,” Paez wrote.
He said the complaint includes allegations of emotional distress as well as financial uncertainty, noting the county doesn’t dispute the latter claim. The plaintiffs further said they have spent money trying to abate the violations they challenge and retained legal representation specifically in regard to code enforcement.
Furthermore, Paez said, “There is an objectively reasonable likelihood that these substantial penalties, which have already been imposed, financially burden plaintiffs because plaintiffs will have to pay them in full or settle with the county to avoid paying penalties they cannot afford.”
Humboldt County argued its process for appealing fines, which includes the potential for penalty reductions, means the allegations are “mere speculation about contingent future events.” But the panel noted the county didn’t dispute claims it can take years to get an administrative hearing and that landowners must request such a hearing within 10 days of the violation notice or the fines instantly become collectable.
Paez also noted the plaintiffs alleged the county has already found them liable and said that short of terminating proceedings, a hearing officer can only reduce the penalty to a minimum amount, which is $6,000 per day — an amount the complaint claims is excessive. They further alleged the hearing officers are biased to the point the fines are all but certain.
The panel also said Judge Illman was wrong to dismiss the challenge to the code because it was brought more than two years after the county enacted the policy. Paez pointed to a 2016 Ninth Circuit ruling, Action Apartment Association v. Santa Monica Rent Control Board, that “expressly rejected” that limitation in favor of starting the statutory clock when a plaintiff learns or has reason to know if an actual injury exists.
In this case, Paez wrote, the timing is linked to the violation notices. As such, any plaintiff who alleged their first notice came fewer than two years before the initial complaint still has grounds to sue. Some landowners also could argue the dates on their notices aren’t decisive by showing, for example, the paperwork was sent to a different property owner, or through claims that continued enforcement gives rise to new limitations periods.
The panel did say the “as-applied Eighth Amendment” claim of one plaintiff, Cyro Glad, was untimely given that the initial violation notice predated the lawsuit by almost four years and the county imposed no daily penalties during the period of statutory limitation.
Paez also said the plaintiffs plausibly alleged the code system itself violates the excessive fines clause. Although the county insists its fines are remedial, the plaintiffs allege they are punitive, arguing they can accumulate to seven figures and exceed the likely sale value of a property.
“Here, the underlying offense is a property offense related to cannabis cultivation,” Paez wrote. “More importantly, and considering the specific actions of the alleged violators, the amended complaint alleges that at least some of the plaintiffs have been charged with county code violations that predate their occupation of their respective properties. At the time of their purchase and since then, plaintiffs allege that the property was not used and has not been used for any cannabis cultivation or operation. In such cases, the nature and extent of the alleged violations are minimal.”
The panel said it seems clear “lesser penalties could accomplish the same health and safety goals, and the county offers no reason to infer otherwise.” Further, the plaintiffs alleged the county didn’t accuse them of harmful conduct, but technical ordinance violations, and said its demolition orders are unconstitutionally excessive.
Aside from Glad’s as-applied claim, the panel reversed the dismissal and remanded the complaint for further proceedings.
The Institute for Justice is representing plaintiffs in the matter, with attorneys Jared McClain and Joshua House, of Arlington, Virginia, and Robert Johnson, of Shaker Heights, Ohio, along with attorneys from the San Francisco and Sacramento offices of Pillsbury Winthrop Shaw Pittman.
“This ruling is a critical step toward dismantling Humboldt County’s unconstitutional enforcement regime,” McClain said in a press release. “The Ninth Circuit’s decision affirms that counties cannot impose exorbitant fines based on flimsy evidence and delay hearings indefinitely. This sets an important precedent, and we are eager to continue our fight for justice on behalf of Humboldt property owners.”
The county defendants are represented by Colantuono Highsmith & Whatley, of Pasadena, Sonoma and Grass Valley.