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RedHeaded Blackbelt

It’s a happy new year for Humboldt County property owners who have been impacted by the cannabis abatement program the past seven years. The long awaited decisions from the Ninth Circuit Court of Appeals, sided almost entirely in favor of abatement recipients claims against the County.

The decisions also set legal precedent in the Ninth Circuit regarding our Eighth Amendment protection from the government’s use of excessive fines and fees. This case helped shape laws for the northwestern part of the country, including Hawaii, Alaska, California, Nevada, Arizona, Oregon, Washington, Montana and Idaho.

The federal class action lawsuit Thomas v County of Humboldt challenges the constitutionality of the 2017-born Humboldt County cannabis abatement program and has been worming its way through the courts since it was filed in October 2022 by the Institute for Justice.

The Institute for Justice wrote in their press release,

“Today, in a significant victory for property rights, the U.S. Court of Appeals for the Ninth Circuit overturned a district court decision that dismissed a lawsuit challenging Humboldt County’s unconstitutional code enforcement program.”

The cannabis abatement program began right after the legalization of cannabis, when the Humboldt County Board of Supervisors approved new ordinances pertaining to the eradication of unpermitted cannabis,  predominantly using satellite imagery to establish guilt.

Over the past seven years about 1200 notices were posted on property gates and community boards across rural Humboldt County, often with threats of fines of up to millions of dollars, for violations such as grading without a permit and/or having a hoop-house or other unpermitted structures. Some new homeowners were cited for previous owners’ alleged cannabis cultivation, and many innocent buyers were caught up in the “abatement scheme” as described in the recent ruling.

For seven years Humboldt County has claimed their abatement program is merely “routine enforcement of local land use laws,” as argued by the County’s legal team in their responsive brief, while citing the importance of the program for the community, for safety, and the environment.

In 2023 Magistrate Judge Illman based at the courthouse in McKinleyville agreed with the county and their representatives, and dismissed the case entirely, before oral arguments were even made.

The Institute of Justice appealed Judge Illman’s decision to the Ninth Circuit in September 2023, and in April 2024 oral arguments were heard on behalf of the plaintiffs and defendants before the Ninth Circuit court (video of arguments here).

One of the lead attorneys on the case, Jared McClain, spoke with RHBB after his oral arguments at the Ninth Circuit last April saying he was “cautiously optimistic.

Institute for Justice Attorney, Jared McClain, reflected on the ruling, writing to the Redheaded Blackbelt,

“The Ninth Circuit’s decision is incredibly vindicating.  The Court recognized that our allegations show that Humboldt’s code-enforcement system is unconstitutional in at least four ways—just as we’ve been saying all along. Now we’ll get to go to discovery and prove our case at trial.”

The seventeen page published decision and another unpublished explains why the Court of Appeals decided in the plaintiffs’ favor on almost every claim based on the county violating the plaintiffs’ constitutional rights in various ways, including their right to due process.

In his dismissal Judge Illman argued the abatement program served a legitimate purpose and the county’s actions were not egregious, writing, “When executive action is at issue…only egregious official conduct can be said to be arbitrary in the constitutional sense: it must amount to an abuse of power lacking any reasonable justification in the service of a legitimate governmental objective.”

However the Ninth Circuit disagreed, writing, “Plaintiffs have adequately alleged that the County’s administrative penalty procedures are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.”

The ruling continues,

“It is irrelevant that Plaintiffs were aware of other property violations because the …claims are based on cannabis-related conduct—and Plaintiffs’ lack of [guilt]. Under these circumstances, a practice of charging subsequent owners of a property with the cannabis-based offenses of the previous owners cannot be said to have “any reasonable justification in the service of a legitimate governmental objective.”

Attorney McClain wrote in the press release,

“This ruling is a critical step toward dismantling Humboldt County’s unconstitutional enforcement regime…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.”

One claim not “affirmed,” essentially agreed on, by the court was a single plaintiff Cyro Glad’s timeliness claims, which can be further evaluated in the local court. Another claim not affirmed pertains to the Seventh Amendment right to a jury trial, which is a decision the Supreme Court may need to make.

Additionally the Ninth Circuit ordered that a new Judge was unnecessary, and sent the case back “on remand” meaning the case will be heard by our local magistrate, Judge Illman, who initially dismissed the case entirely.

The Ninth Circuit Court ruling states,

“Although the district court’s dismissiveness of Plaintiffs’ well-pleaded allegations is cause for concern, we trust that the “original judge would [not]…have substantial difficulty in putting out of his . . . mind previously-expressed views or findings determined to be erroneous.”

It’s been an almost decade-long battle now, and Plaintiffs have been patiently waiting for news from the Ninth Circuit all year.

“[I’m] so happy… I couldn’t think of a better way to close the year and begin anew,” one plaintiff Rhonda Olson explained.

Read more at

https://kymkemp.com/2024/12/31/huge-win-for-cannabis-abatement-recipients-in-the-ninth-circuit-court-of-appeals/?fbclid=IwZXh0bgNhZW0CMTEAAR0cxylDVCEQpceFLQ6EUbsUIV2pI8NBEYbiXDqs2eEuLZFSiHbbSIPYeac_aem_UnhROLZL1vVN65Eqs3-FKQ