Cyndy Day-Wilson has been invited to speak at her alma mater, the University of Idaho College of Law, to speak to current law students about being a woman in the legal profession and how the field has changed since she graduated. Ms. Day-Wilson was one of only a handful of women in the Class of 1986 - she is excited to meet the current group of students and talk to them about navigating the ever-changing legal field.
California Court Confirms Cannabis Advertising Ban
CA Supreme Court Holds that City of San Diego Erred in Finding Zoning Amendments Regarding Location of Medical Marijuana Dispensaries Did Not Constitute a Project Under CEQA
UNION OF MEDICAL MARIJUANA PATIENTS, INC. v. CITY OF SAN DIEGO; CALIFORNIA COASTAL COMMISSION (August 19, 2019)
The Supreme Court reversed the decision of the court of appeal affirming the finding of the City of San Diego that adoption of an ordinance authorizing the establishment of medical marijuana dispensaries and regulating their location and operation did not constitute a project, holding that the court of appeal misapplied the test for determining whether a proposed activity has the potential to cause environmental change under Cal. Pub. Res. Code 21065.
The City of San Diego adopted an ordinance authorizing the establishment of medical marijuana dispensaries and regulating their location and operation. The central provisions of the ordinance amended various City zoning regulations to specify where the newly established dispensaries may be located. Because the City found that adoption of the ordinance did not constitute a project for purposes of CEQA, it did not conduct any environmental review. Petitioner Union of Medical Marijuana Patients (UMMP) challenged the City’s failure to conduct CEQA review in a petition for writ of mandate, which was denied by the trial court. On appeal, UMMP argued (1) the amendment of a zoning ordinance, one of the public agency activities listed in section 21080, is conclusively declared a project by that statute and (2) the City’s ordinance, in any event, satisfied the definition of a project under section 21065. The former argument was premised in part on Rominger v. County of Colusa (2014) 229 Cal.App.4th 690 (Rominger), which relied on section 21080 in concluding that a county’s approval of a tentative subdivision map, another activity listed in section 21080, was a project as a matter of law. Here, the Court of Appeal disagreed with Rominger, concluding that the amendment of a zoning ordinance is subject to the same statutory test as public agency activities not listed in section 21080. The court proceeded to find no error in the City’s conclusion that the ordinance was not a project because it did not have the potential to cause a physical change in the environment.
The California Supreme Court granted review to resolve the conflict between the two Courts of Appeal regarding the interpretation of section 21080. Upon review, the Supreme Court agreed with the Court of Appeal below that section 21080 does not override the definition of project found in section 210650. The Supreme Court thus held that the various activities listed in section 21080 must satisfy the requirements of section 21065 before they are found to a project for purposes of CEQA. Conversely, the Supreme Court concluded that the Court of Appeal misapplied the test for determining whether a proposed activity has the potential to cause environmental change under section 21065, which was established in Muzzy Ranch Co. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, and erred in affirming the City’s finding that adoption of the ordinance did not constitute a project. For that reason, the Supreme Court reversed and remanded for further proceedings.
Native Americans Right to Hunt Backed by US Supreme Court
THE U.S. SUPREME COURT RULED THAT THE HUNTING RIGHTS OF A NATIVE AMERICAN TRIBE SURVIVED THE U.S EXPANSION INTO THE WEST
In Herrera v. Wyoming, the High Court voted 5-4 in saying the Crow tribe's rights did not expire when Wyoming became part of the United States in 1890. The controversy started when Clayvin Herrera, a Crow tribe member, and fellow Crow members were hunting on their reservation in Montana. They followed elk that had crossed into the forest of neighboring Wyoming. They shot three elk and took the meat back to the reservation.
Herrera was then convicted for hunting violations in the Bighorn National Forest. He claimed a right to hunt there pursuant to an 1868 treaty between the tribe and the federal government. Wyoming argued, however, that the right expired upon statehood.
In the 1868 treaty, the tribe had ceded over 30 million acres to the U.S. In exchange, the federal government, as part of that treaty, said the tribe "shall have the right to hunt on unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and the Indians on the borders of the hunting districts."
Ruling for Herrera, the Supreme Court noted that the Crow had inhabited the land for more than three centuries and under the treaty had the right to hunt in the Bighorn National Forest. The decision also marked the second time that Justice Neil Gorsuch has voted for tribal rights in close decisions.
Cities Beware: "Chalking" of Parked Cars Violates Fourth Amendment According to 6th U.S. Circuit Court of Appeals
SIXTH CIRCUIT ERASES “CHALKING” OF PARKED CARS
It’s not often that a dispute over parking tickets ends up in federal court. But that’s exactly what happened this week in Taylor v. City of Saginaw.
Taylor involved a challenge to “a common parking enforcement practice known as ‘chalking,’ whereby City parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked.” This practice is used by many jurisdictions and is generally known to be effective for identifying those that stay too long in their spot. But it is apparently very effective in Saginaw, Michigan.
After receiving a slew of parking tickets, Ms. Taylor filed suit in federal court, alleging that the City violated the Fourth Amendment by chalking her tires without her consent or a valid warrant. The Sixth Circuit agreed, relying upon the Supreme Court’s recent decision in United States v. Jones, 565 U.S. 400 (2012), to hold that chalking constitutes an unreasonable trespass upon a constitutionally-protected area (your car).
At first blush, chalking a car’s tires may not seem like the type of “search” typically raising Fourth Amendment concerns. But as Judge Donald explained, Jones signaled a rebirth of “the seldom used ‘property-based’ approach to the Fourth Amendment search inquiry,” which focuses on physical intrusion to one’s property:
Under Jones, when governmental intrusions are accompanied by physical intrusions, a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.
In the Court’s view, chalking satisfied both of these requirements: the officer came into contact with Ms. Taylor’s car, in an attempt to obtain information about her (whether she remained in her parking spot too long).
The Court held that the search was unreasonable because the car was parked legally when chalked, and the officer lacked any reasonable suspicion (let alone probable cause) that a crime had been committed. The Court also specifically rejected the City’s assertion of the “community caretaker” exception, explaining that “the purpose of chalking is to raise revenue, and not to mitigate [a] public hazard.”
New Cannabis Water Regulations for California Farmers
REGULATIONS COULD BE INDICATIVE OF BROADER SWEEPING POLICY FOR ALL CALIFORNIA AGRICULTURE
In 2019, the California State Water Resources Control Board adopted an approach to regulate cannabis cultivation and the source of the water supplies used for irrigation. The Board’s approach is to uniformly (for the most part) apply these new regulations throughout California without any consideration for the many differences in the geography, hydrology and climate across the state.
The new policy that I am referring to is the Cannabis Cultivation Policy - Principles and Guidelines for Cannabis Cultivation. Under this policy, the Board has developed very unique rules for a specific crop - cannabis. For instance, a farmer may not use a single drop of water from an adjacent creek to provide irrigation to his/her growing crop during the dry season nor may he/she divert more than 10 gallons of water per minute during the wet season. These restrictions are in place even if the farmer holds a valid water right.
While these new water regulations currently apply only to cannabis farmers, anyone involved in agriculture should be monitoring the Board’s new regulations as they involve water supply and quality issues for an irrigated crop and could be an indication of a broader sweeping policy on the horizon.
Agriculture: Are Stockponds Considered a Water Diversion?
WATER DIVERSION REGULATIONS IMPACTING FARMERS AND CATTLEMEN
Water rights are certainly something that most agricultural operators spend a significant amount of time grappling with due to SB 88 passed in 2015. SB88, among other things, requires that all water diversions in the state over 10 acre-feet install measuring devices to accurately measure the rate and amount of diversion, and all diversions in the state are now subjected to reporting requirements. Since the emergency regulations implementing SB 88 went into effect in 2016, many agricultural operations have struggled to come into compliance with the regulations due to the difficulty of fitting some of these diversions with measuring devices, the cost of compliance, and other factors. In 2017, the California Cattlemen’s Association sponsored AB 589, which was signed by Gov. Brown and provided some relief from SB 88, allowing diverters to self-certify their measurement devices in certain circumstances.
Significant issues, however, often remain with “smaller” diversions (those < 10 acre-feet) due to;
(1) lack of compliance with the registration requirements. Agricultural operators often aren’t aware that their stockponds constitute ‘diversions’ under Water Code 5100(c) under the Board’s interpretation of that statute; and,
(2) the significant and ever-increasing costs of maintaining those water rights.
AB 448, was introduced in the California Assembly on February 11, 2018 to address some of these concerns.
Learn More:
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB448
Travels Abroad: Cannabis Laws in Amsterdam
HOW DO CANNABIS LAWS IN AMSTERDAM COMPARE TO CALIFORNIA?
I had the opportunity a few weeks ago to travel to Amsterdam. When I told people about the planned trip it often elicited a laughing inquiry into my plans to visit the redlight district and enjoy what is now recreationally legal thanks to Proposition 64.
Many of you may be surprised to hear that cannabis is actually illegal in the Netherlands. What? I thought it was legal to smoke marijuana in Holland?
No. Despite the existence of coffeeshops, which sell cannabis over the counter, the drug is not legal in the Netherlands. The locals told me that the authorities turn a blind eye to anyone in possession of 5g or less.
“Coffeeshops” not to be confused with “Cafes” - which, actually serve coffee - are allowed to store a maximum of 500g of cannabis on the premises at a time.
So are coffeeshops illegal, then? No. Though coffeeshops are technically illegal, they are granted permits to trade by the authorities.
In addition, smoking cannabis is to be done in coffeeshops and only in coffeeshops. Smoking in public places is not tolerated by local authorities.
Some of you may have heard of the”Weed Pass” which was designed to prohibit non-Dutch nationals from visiting coffeeshops. It testedin some of the country's southern provinces – including the city of Maastricht – but most towns and cities have reportedly abandoned the scheme. Amsterdam has been exempted from enforcing the Weed Pass on the condition that the mayor closes coffeeshops located within 250m of a school. However, coffeeshops in Maastricht still require smokers to prove they live in the Netherlands.
So, before your next trip to the Netherlands be sure you check out the local laws.
Energy & Environment: Windmills off Eureka's coast
WINDMILL PROPOSAL OFF THE COAST OF EUREKA
I was able to see an interesting sight from 10,000 feet while flying from London to Amsterdam a few weeks ago in January. Many of you have heard that the Redwood Coast Energy Authority (RCEA) is developing a public/private partnership with a consortium of five companies to develop a 100–150 megawatt (MW) floating wind farm 30km (20 miles) off the coast from Eureka. So, what might it potentially look like?
The world’s first commercial floating wind farm – generating 30 MW – just opened in October 2017, off the coast of Scotland. The turbines that are in the English Channel, that I saw outside my window seat on KLM, are anchored to the seabed and lined up perfectly as you make the approach into the Amsterdam airport. I thought I’d share the sight out my airplane window for those of you who may be interested in what a wind farm anchored in the ocean looks like: