The New Face of Pot Enforcement

It has been almost a year now since the legalization of rec(reational) pot and people are still getting busted for it — so what’s up with that?

It is a question I get asked a lot and so I’ll try to explain it here, with the caveat that of course nothing will be absolute and final until, like every other avenue to prosperity in the world, it has been co-opted by the big corporate interests, and only the shit-jobs are left for the proverbial little-guy, Mendo’s erstwhile poor hippy, your colloquial mom & pop op(eration), or whatever euphemism best denotes modesty of ambition, dearth of cupidity, absence of avarice, and lack of greed in the growing of weed. Which may even have been true in some cases.

But the main thing growers are getting popped for now is taking water from streams, no matter how small or seemingly insignificant, the amount taken. It is a felony to take that water — and the District Attorney will prosecute you for it (unless it’s for wine grapes of course; we’ll get back to that) — and it is also a felony if you do anything at all to alter the streambed or put anything in it or near it. These are the offenses people are currently being busted for, with Fish & Wildlife wardens leading the charge, with back-up contingents of COMMET (County of Mendocino Marijuana Eradication Team) deputies.

Water, water everywhere and nary a drop for my withering pot plants, is the sad lament we are beginning to hear.

The wine grape grower has been taking water from the creeks and streams with impunity for years, but the political will just isn’t there, as they say in the corridors of power, to stay the hand that drains the creek to fill the pinot noir bottle. That water was sold long ago to grape growers to the south of Mendocino County and some of the same people now have vineyards in Anderson Valley, so of course, they aren’t about to complain if a little water gets siphoned off for some Anderson Valley pinot.

But they will hardly suffer any of their water being used to grow weed, will they?

Then there’s the sport-fishing enthusiasts who yearn for the creeks and rivers full for the ravaged salmon runs to come back, the steelhead trout to rise for an artificial mayfly, the artful joy of fly-fishing, the sport of the catch, the creel limit, the smoked salmon on a bagel with cream cheese and chives, a twist of lemon peel, and all that it comes with, such as a glass of pinot noir or pinot gris.

"Would the Mademoiselle care for a small bowl of tangerine green bud — the latest from the Emerald Cup! — to pair with her delicate refection?"

“Oui, oui, Monsieur.”

Well, where is all the water to come from?

On January 17th, 2018, Warden Mason Hemphill will have finished up his first year of service in Mendocino County as the new Watershed Enforcement Officer. Grape growers need not panic, however, for Warden Hemphill (as his name so vividly implies) appears to be only after those kinds of agricultural entrepreneurs who grow cannabis and water it with the watershed’s most essential element.

Note that Warden Hemphill’s duties began at the same time as the recreational legalization of marijuana, and it becomes obvious that his job was created for a very specific purpose, namely the interdiction of marijuana cultivation projects that fall outside whatever rules the County Supervisors come up with.

Such as:

Seng Boungnavath said, through his Laotian language interpreter, that he didn’t know it was against the law to grow the marijuana plants he was busted with near Hopland, nor that it was a felony violation of the Fish & Wildlife Code to use water from a nearby creek to water the weed. The address, 4710 Feliz Creek Road, was visited by Warden Hemphill and Deputy Jeffrey Andrade who made it clear to Mr. Boungnavath last summer when they arrested him for these violations. Mr. Boungnavath’s sad story may serve as a notice to pot growers who may have been under the impression that the war on drugs was a thing of the past.

It’s not over — not yet. Although it appears to have morphed into the figleaf of environmental protection.

“Ignorance of the law is no excuse,” my nanny used to say whenever I was caught with a mouthful of sugar. And our current crop of judges are as formidable disciplinarians as she was. Mr. Boungnavath’s defense cut no ice in Judge John Behnke’s court. If Boungnavath didn’t know he shouldn’t have touched that water, he [most emphatically] should have known it before taking on such an enterprise. And he took a lot. There were two 20,000-gallon water bladders full of water at his ten gardens supplied by the bladders.

The Gardens:

1. 226 clones
2. 739 clones
3. 500 clones
4. 134 plants, flowering
5. 109 plants, vegetative
6. 84 plants, flowering
7. 6 plants, vegetative (the only legal one of the lot, by current standards)
8. 83 plants, flowering
9. 864 plants, flowering
10. 667 plants, flowering

Another felony Fish & Wildlife charged Mr. Boungnavath with was a deposit of potting soil within 150 feet of the creek. This is a huge no-no with Fish & Wildlife. And it’s not just potting soil which can wash into the creek. Anything, anything at all not indigenous to the landscape within this 150 feet boundary of a creek or tributary to a creek — even if it’s dry at the time — is considered a violation. A piece of plastic pipe or a cigarette butt would be enough to get you charged.

But in this case, a plastic tote, or tub, was in the creek-bed.

“What does that indicate to you?” DA David Eyster, who was handling the case personally, asked Warden Hemphill.

“A tub like that is often used to put a pump in, in order to pump the water out into a holding tank, a holding pond, or into water bladders,” the warden answered. “I asked him who was pumping water out of the creek, and he said Erwin.”

“The name referred to earlier?”

“Yes, sir.”

It had been made fairly clear that this Erwin was the one who put the potting soil near the creek and was probably the owner/operator of the grow. It was also more than likely that the ten grows belonged to ten different people, but since Mr. Boungnavath wasn’t prepared to name names, he was going to be left holding the turkey bag, as they say in the dope business.

On cross, Boungnavath’s lawyer, Daniel Moss of the Office of the Public Defender, asked the Warden, “My client denied personally pumping water from the creek, didn’t he? You were not you able to find any water hook-up from the creek to the water bladders, were you, Warden Hemphill?”

“Correct.”

“How far from the creek was the marijuana grow?”

“I’d have a hard time putting a firm distance on it. I didn’t measure it.”

“What was closer, the creek or the well?”

“The creek.”

“How far away was the well?”

“It was at the bottom of the property, a couple of hundred yards below the grow site.”

“Did my client say anything about depositing the potting soil near the creek?”

“He only said that he used the quad and trailer to move the potting soil to the greenhouses.”

The pot cultivation, no matter the scale nowadays, only amounts to a misdemeanor, but the DA likes to use the vast quantities being grown at busted sites to impress on the jury — should the case go to trial — the scope of environmental damage resulting from the Fish & Wildlife Code violations.

This is what growers are up against.

The drought may or may not be over, but the watershed is protected from use by cannabis cultivators, and by God Warden Hemphill is there to enforce it.

(PS. It is possible that the No. 7 grow was Seng Boungnavath's own, and that he was the only one on the site in compliance — but unless he turns in the others, he'll be taking the rap for the whole shebang! )