The Del Norte County Board of Supervisors took no action on a report from legal counsel, which brought to light the possibility of growing hemp in agricultural areas of the county and it would be federally legal.
County Attorney Joel Campbell-Blair explained a prior board had approved an ordinance allowing for the cultivation of hemp in 2013, with the condition the ordinance was not to be enacted unless federal laws prohibiting it were to change. It also said Prop 64 activated the law early.
“This division shall become operative on Jan. 1, 2017,” the ordinance read, making hemp technically legal for the last 18 months.
“Hemp was federally illegal until December (2018),” he said. “We’ve had this rush of emergency regulations from the state and interest from local people wanting to grow.”
He said the Controlled Substances Act was recently amended to take hemp out of the classification of cannabis as a Schedule 1 drug, making it an agricultural product. That reclassification means it is no longer subject to cannabis regulations.
Campbell-Blair said the California Department of Food and Agriculture was supposed to have enacted a registration fee for hemp cultivation but didn’t until a couple months ago.
“So it was legal but you couldn’t actually do the things the law required you to do in order to do it legally,” he explained. “All of a sudden, at the end of April, that fee was established at $900.”
He said $700 of the fee is to be sent to the federal government and the remainder is to be used by the county. While counties could impose their own fees for studies and other uses, the county ag commission has a memorandum of understanding (MOU) with the state to share some costs and responsibilities, he said.
State law says the county cannot prohibit interstate commerce of hemp.
“It’s the opposite of cannabis where it’s legal in California but can’t go out of the state,” he said, “but hemp can go in and out and we can’t stop it.”
Supervisor Bob Berkowitz questioned whether the lack of import regulations means raw hemp could be purchased on Amazon. A quick search confirmed that seeds, hemp hearts and many other products can be shipped.
“I think fundamentally, we’re looking at a product that both the state and federal governments have chosen to regulate more like a traditional agricultural crop,” Campbell-Blair said. “Not entirely like one, you still have to do all these registration and testing things but once it tests clean, or low THC, it seems to be a pretty run-of-the-mill treatment of a crop.”
States and tribes are allowed to apply with the federal government to have plans with minimal regulatory authority.
“Once the plan is approved, the state or tribe can have a program,” he said. “California has sort of jumped in without that approved plan yet, as is kind of California’s way, but we, being a subdivision of California, are beholden first, to California law, so we’re in it.”
He said submitted plans must include mandates for record keeping, random testing of plants and procedures for disposing of non-compliant plants. Growers must test plants for THC content and destroy plants exceeding the threshold.
Supervisor Chris Howard questioned who would be responsible for testing and destruction, which Campbell-Blair said could be done by a lab in Humboldt County and things can be negotiated in a way as to keep the cost on the grower. He said in cases of non-compliance, issues could be addressed using the county’s nuisance abatement laws.
Asked by Howard if choosing which plants are tested would be done on an honor system, Campbell-Blair said those details still need to be worked out.
What is it
Campbell-Blair explained “hemp is the same plant as cannabis, which is required to be permitted under the Business and Professions Code. It’s just cannabis with less than .3 of one percent of THC, on a dry weight basis.” He later said the common maxim about ingesting hemp is that you could smoke a whole field of it and get nothing but a headache.
Asked by Supervisor Roger Gitlin about hemp’s medicinal uses and potential for abuse, Campbell-Blair said CBD oil can be extracted from hemp, which is not regulated like cannabis. He said it’s possible that some people could mistake hemp for pot and steal it but they would quickly learn the difference once they smoke it.
“Cannabis had this hype cycle where ‘everybody’s going to get rich.’ Hemp seems to have the opposite hype cycle where ‘it’s going to take over and ruin everything and everyone’s going to ban it right away,’” he said, noting some county and state officials have concerns about cross pollination of cannabis and that many details still need to be worked out. One of those is that any “Established Agricultural Research Institution” is exempt from all requirements and may serve as a legal loophole.
He said the board can ban hemp agriculture in the county, but would still be required to issue registrations, which will be essentially useless if a ban is in place. The Department of Agriculture has issued two registrations to date.
Campbell Blair said once written, an ordinance could be passed in six to eight weeks, and that it may be too late in the season for planting this year.
When Howard asked about zoning, Campbell-Blair said it can be grown on any agricultural land in and out of the coastal zone, but not timberland preserve zones.
“In areas that are open to interpretation, we would be inclined not to be particularly heavy-handed,” Campbell Blair replied.
Asked if the county should start considering fees for predicted county costs related to future hemp production, Campbell-Blair said it’s probably a good idea.
“What I would be most comfortable with is taking a break, seeing how it goes, and be actively learning and studying between now and having a full-fledged regulatory system in place before the next growing season,” he said.
After some discussion about visual similarities to cannabis, setbacks and concerns about getting on top of a growing industry, Campbell-Blair said so far, no one has applied for a legal cannabis cultivation permit in Del Norte County.
“I don’t know if that’s because the industry tanked, which it kind of did. I don’t know if that’s because we made the permits too hard to get or too hard to comply with, which we might have, so those kind of policy issues of how much we’re promoting or protecting an industry versus how much we’re defending against impacts, those are hard to do at a pure legal level,” he said. “That’s why they take a long time. It’s a lot of public input and working group meetings.”
He said if the board had clear direction, staff could come up with ordinances quicker.
He said discussions could continue at the Natural Resources Goals Committee, which could serve in the way the County’s Cannabis Working Group researched issues.
He added later if the board chooses to prohibit hemp production, based on oder, visual impact and similarity to cannabis issues, it could probably do so, based on nuisance issues.
Tribe ahead of curve
While the board decided to watch and see, the Yurok Tribe says it’s been on the track of industrial hemp for several months. Tribal Chairman Joseph L. James said the tribe wants to be on the forefront of what could be a revenue-generating industry for the tribe.
“For us, as we’ve been doing our due diligence, and making sure our values as environmental stewards are in place, we are doing two projects,” he said. “An extraction project and also producing feminized hemp seeds to provide across the United States.”
He said one plan would be done in Humboldt, the other in Del Norte county. James said the tribe has already submitted a plan to the U.S. Department of Agriculture, and are hearing the plans may be approved by late fall. He said the tribe passed a simple ordinance, which will heavily regulate the projects.
He said the Yurok Tribe is one of seven tribes in the country that have submitted plans. When asked, he said the projects will be done on trust property.
Gitlin asked about the tribe’s incentive for the projects.
“The incentive is that the tribes are written directly onto the federal equivalent to the state,” he said. “I’ve had a brief discussion with the California Attorney General and I think there’s a good economic opportunity.”
Saying hemp is nothing new, James said large stores and online merchandisers are already selling hemp CBD products and the tribe doesn’t want to sit on the sidelines and watch such an opportunity go by.
“When the regulations drop this fall, our anticipation is we’ll be ready for business,” James said.