Case Team

Attorneys

Jared McClain

Attorney

Rob Johnson

Senior Attorney

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J. Justin Wilson

Vice President for Communications

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Humboldt’s Unconstitutional Code Enforcement Regime

Humboldt is a large, rural community of about 54,000 households spread out over 4,052 square miles. For decades, the county has attracted off-the-grid homesteaders, hippies, and other counterculture and anti-government types.^[1] As a likely result of the county’s geographic, economic, and political makeup, Humboldt has traditionally looked the other way as residents built homes and accessory structures or graded their land without obtaining a permit from the county. After Californians voted to legalize the recreational use of marijuana, however, Humboldt County gained a newfound rigor for enforcing all those old permitting requirements and nuisance laws that it had overlooked or underenforced for decades. 

The changes to Humboldt’s code and enforcement policies are tied directly to the legalization of marijuana. The county created a scheme of permits, taxes, and fines to get its share of marijuana proceeds. Anyone who grows without a permit faces crushing fines. Faced with the same geographic and financial constraints that made code enforcement difficult historically in Humboldt, the Planning and Building Department devised a strategy to supercharge its abatement regime: ticket everyone and force the accused to prove their innocence.

The county imposes a daily civil penalty of up to $10,000 per violation, for up to 90 days, for any code violation it says is related to cannabis.^[2] These offenses include things like the failure to get a permit before building a temporary greenhouse (called a “hoop house”) or leveling some land. Once charged with failing to get a permit, however, the county refuses to issue the necessary permit. Instead, the county insists that they “return the land to its pre-cannabis state,” a murky concept that requires the owner to destroy any structures and re-grade land that the county argues was used to grow cannabis. But even if a landowner sends in pictures to show there is no marijuana on the property and tears down the greenhouse at issue, the county won’t dismiss the charges. 

After 10 days are up, the daily fines kick in. Appealing the fines does not stop them from accumulating.^[3] So, in order to appeal, a landowner must subject themselves to the full 90 days’ worth of fines because the county takes years to schedule appeal hearings. In fact, the county code doesn’t even allow the county to schedule a hearing until after at least five days after the daily fines kick in. On top of the fines, the county refuses to issue any other permits necessary to develop land and it charges an accused with the growing administrative costs of the county dragging out its case. 

Once a property owner finally receives their appeal hearing, a hearing officer for code enforcement decides the case. Despite the massive fines that the county assesses as an alternative to criminal charges,^[4] there is no right to a jury nor other rights that would occur during a proper judicial hearing. Once the hearing officer assesses a fine, the county can begin to collect before the property owner appeals to a real court.^[5]

Humboldt’s Unconstitutional Enforcement Practices

The county administers its fines indiscriminately. Relying on crude satellite images of property, the county targets plenty of land uses wholly unrelated to marijuana—let alone illegal growth. Many people in this rural community grow their own food and live off the land. And others live on land once owned by logging companies that graded the land for trucks collecting timber. Nevertheless, the county accuses those innocent owners identified in satellite images of running illegal commercial-scale growing operations. 

Not only does Humboldt appear to fine almost anyone with a greenhouse or graded flat of land, but each violation tends to include three or four offenses for every parcel. The county insists that landowners must grade land to put up a greenhouse, so the existence of a greenhouse typically carries $30,000 in daily fines—$10,000 for the greenhouse, $10,000 for the supposed grading, and $10,000 for the marijuana the county insists must be inside the greenhouse. These fines run for 90 days and there’s often nothing the owner can do to stop them. Even though the county says they must return the land to its “pre-cannabis state” to avoid the fines, destroying the greenhouse and proving there’s no marijuana is often not enough to make the county drop its case. 

Worse, Humboldt will fine new purchasers millions of dollars because the prior owner allegedly grew marijuana illegally before they bought the place. The transfer of ownership is not enough, in the county’s view, to remove the taint of marijuana. It will insist that the new owner destroy structures the prior owner used to cultivate their crop. While some of the cannabis-associated structures that the county wants destroyed are small greenhouses, others are large, permanent structures, the demolition of which would require an engineer, demolition permits, high labor costs, and even an environmental impact study. Faced with crippling fines, owners have a little over a week to contact a lawyer and an engineer to figure out their next steps. The decision is made more difficult by the fact that owners who choose to appeal must risk the continued accrual of fines as they await a hearing.

While these innocent owners have all of 10 days to weigh their options under the threat of millions in fines, the county typically offers them a compliance agreement, under which owners waive their rights in exchange for a single day’s worth of fines. But even those owners who sign an agreement must often still destroy the structures on their land, simply because the building looks like it was used to cultivate cannabis at some point. 

These tactics have put hundreds of innocent property owners under immense pressure and legal uncertainty. They never grew cannabis, but they also can’t get their day in court. And in the meantime they face crippling fines and can’t develop their land. Four Humboldt property owners in particular illustrate the abatement program’s injustices.

Blu Graham 

Blu is a Humboldt resident who owns a restaurant called Mi Mochima in Shelter Cove and Lost Coast Adventure Tours, which guides hiking tours throughout the county. He received an abatement notice in 2018 based on a satellite image that showed he had greenhouses and a rainwater-catchment pond. Although the greenhouses were to grow vegetables for his restaurant and the catchment pond was for fire prevention, the county alleged without any evidence or investigation that his greenhouses and pond were all to facilitate an illegal commercial marijuana operation. Blu faced $10,000 in fines if he didn’t remove the 100,000-gallon pond and greenhouses in 10 days. 

Blu drove to Eureka within the 10 days and promptly filed his administrative appeal. When he arrived, county officials insisted they knew he was “not just growing asparagus.” They also told him that everyone in Humboldt would get an abatement order eventually. The county admitted that some of Blu’s grading was for fire prevention but insisted without any proof that he still used the water to cultivate marijuana. 

While he was at the county office contesting the charges against him, the county began pressuring him into a compliance agreement immediately. They told him he risked losing his land if he did not comply and offered to settle his case if he admitted to growing marijuana and paid the county $30,000. 

            Blu waited over 4.5 years without receiving his hearing. Over those years, the county would periodically call him and pressure him to settle his case. They assured him that no one could win their administrative hearing and that settlement was in his best interest. They also refused, illegally, to give Blu a permit for his home until he settled his outstanding abatements. 

On the eve of Blu filing his federal lawsuit, the county mysteriously finally gave him his appeals hearing, dropping any claims that he had grown marijuana. Blu settled his claim for $0 but he had to pay $4,500 in administrative costs that the county racked up during its half-decade pressure campaign.    

Corinne & Doug Thomas

Corrine and Doug Thomas lived in Los Angeles County with their twin autistic sons until a wildfire destroyed their home in November 2018. Using the insurance money from the fire, the Thomases decided to purchase their “forever home” in the middle of a redwood forest in Humboldt, where they always dreamed of living. They’re semi-retired but still run a non-profit called Miracle Run Foundation for Autism, which raises awareness and money for families with autism. The foundation is named after a book Corrine wrote and the movie based on that book, which depicts their twin autistic sons’ perseverance through school. 

In August 2021, they closed on a home on the top of a ridge just off the Avenue of the Giants. Behind the home, there is a three-story outbuilding next to a detached garage; the written disclosures referred to the three-story building as a “workshop,” but it was empty and the electricity to the building had been cut. 

Six days after the Thomases moved in, they received an abatement notice addressed to the property’s prior owner. The notice listed two violations: (1) unpermitted cannabis cultivation and (2) construction of an unpermitted building used for unpermitted cannabis growth. The notice imposed a daily administrative penalty of $12,000 for 90 days unless they (1) ceased all commercial cannabis cultivation operations and removed all cannabis and infrastructure supporting commercial cannabis, including water infrastructure and power sources; and (2) removed all structures with a nexus to cannabis cultivation. 

The Thomases submitted their notice of appeal just one week later, stating that they were the property’s new owners and had not grown any cannabis on the property. The county, of course, should have known that, since the county itself had cleared out all remnants of the prior owners’ growing operation during a raid of the property two years before the Thomases purchased it. 

After hiring an engineer, the Thomases learned that it would cost over $180,000 to remove the building, plus the cost of permits and fees. Removing the building would also require the Thomases to tear down the old-growth redwoods that surrounded the building and plant new ones. On top of those costs, the Thomases faced over $1 million in fines if they lost their case before the code enforcement unit. 

The Thomases, after just losing everything in a fire, had poured what was left of their money into renovating their new home. And they now faced insurmountable fines and fees for someone else’s wrongdoing. That October, they had still not received their hearing on appeal. With the fines already in the six figures, the Thomases gave in and signed a compliance agreement out of duress. But they have found it impossible to satisfy the county’s demands, and the agreement has since expired. The county offered them a new agreement that they refused to sign, so the county can now serve a new notice of violation any day, starting a fresh 90 days of fines.

Rhonda Olson

Rhonda Olson is a longtime resident of Orleans, California, which sits across a mountain range and about two hours northeast of Eureka. She recently used some of her retirement funds to purchase three adjacent parcels of land just down the road from her home. She planned to provide a parcel each to her disabled daughter and a longtime family friend for their respective homes, and to build affordable housing for low-income residents on the third. 

The first parcel is on the top of a hill. It has a modular home below a steep driveway that leads to an old flat where a logging company would load its timber. There were hoop houses alongside the modular home and up on the logging flat.

The second parcel has a home and an industrial two-story garage attached to a shed. Records show that the county has collected property taxes on this garage since at least 1982, when it was likely built as part of a logging operation. 

The third parcel is across the street. It has a cluster of grape vines by the street before opening up to a field on a naturally sloped piece of land. The field is vacant aside from a hoop house.  

At the time of her purchase in 2020, Rhonda knew that the prior owners had been raided for illegally growing cannabis and that police had cleared out the entire growing operation. She said that she would not purchase the property unless the title was free and clear. A title report confirmed that there were no permitting or abatement issues on the three parcels, so she went ahead with the purchase.

Rhonda’s plans to develop the property were upended almost immediately. The day after she closed, Humboldt’s planning department issued abatement notices for all three parcels in the prior owner’s name. There were 14 total alleged violations between the three parcels relating to the hoop houses, the industrial garage, and the grading flats. According to the county, each violation was committed to grow marijuana and, consequently, received the maximum fine. In total, Rhonda faced $104,000 in daily fines for land she just bought for $60,000. (The county later removed a couple violations, which lowered the daily fines to $83,000.)

Rhonda appealed the charges, and the county told her she could not develop her land (which was the whole point of her purchase) until it closed the case against her. But the county won’t schedule her hearing or dismiss the charges it knows are baseless. The county has admitted that the police removed all cannabis from the property prior to Rhonda’s purchase, that Rhonda removed the hoop houses, and that the grading was done in the 1980s for logging—not to grow marijuana. But it still won’t settle with Rhonda go unless she pays.

The county’s policy is to drop code-enforcement cases against owners who pay to grow commercially. Although Rhonda is licensed to grow and doesn’t have an active farm, she wants to build housing on the property—not a commercial cannabis farm. So the county has taken over two years and still not provided her a hearing or the permits she needs to develop her land. The county can’t use the threat of massive fines to push people into growing commercially just because it’s lucrative for the county.

The Lawsuit

Blu, the Thomases, and Rhonda have teamed up with IJ to file a federal class action in the Northern District of California to put an end to the county’s unconstitutional abatement program. The Defendants in the case are Humboldt County, the county’s Board of Supervisors, the Planning and Building Department, and the individual officials responsible for adopting and enforcing the county’s abatement program. The class action raises three basic claims.

First, all Americans have a right to due process before the government infringes on their property rights. But Humboldt accuses property owners of cannabis-related offenses without any proof or process. Accused property owners face up to tens of thousands in daily fines, which accrue even if they appeal the charges. And innocent property owners do not get their day in court, much less anything resembling a speedy trial. This whole system violates due process. For innocent purchasers, the system also violates substantive due process. No amount of process can justify punishing innocent property owners for the behavior of previous owners or for using their properties in completely legal ways. 

Second, Humboldt’s abatement fines and fees violate the Excessive Fines Clause of the Eighth Amendment. Minor code violations automatically carry a daily fine up to $10,000 so long as the county alleges, without any evidence or investigation, that a landowner violated the code to grow cannabis. For one, these fines are completely disproportionate to the offenses and have nothing to do with protecting health and safety. The same code violations typically carry a maximum penalty of $1,000 when marijuana isn’t involved. Second, the county also violates the Excessive Fines Clause when it punishes innocent new owners like the Thomases and Rhonda for a prior owner’s conduct. 

Third, the Seventh Amendment guarantees Americans the right to a jury of their peers when the government imposes civil penalties. Despite the punitive nature of Humboldt’s abatement fines and fees, Humboldt residents do not get to have a jury decide the facts relevant to their case, including whether they caused a nuisance related to unpermitted cannabis growth. The county should not be able to circumvent the jury right by issuing monetary penalties through administrative hearings rather than the courts. 

The Litigation Team

The Plaintiffs are represented by Institute for Justice Attorneys Jared McClain and Joshua House and Senior Attorney Robert Johnson. Local counsel are Thomas V. Loran III and Derek Mayor of Pillsbury Winthrop Shaw Pittman LLP.

About the Institute for Justice

The Institute for Justice is a public-interest law firm that litigates nationwide to vindicate individual liberties. This case is part of IJ’s national work to defend property rights and fight abusive fines and fees. In 2018, IJ secured a federal consent decree ending Pagedale, Missouri’s abusive fines and fees practices. IJ is currently working to protect a Florida homeowner from ruinous fines for failing to cut his lawn; Brookside, Alabama residents from local police using enforcement to generate revenues; and Eagle, Wisconsin farmers targeted for code enforcement after they spoke out at town meetings.

^[1] https://www.newyorker.com/news/dispatch/how-legalization-changed-humboldt-county-weed

^[2] Humboldt Code § 352-5(a).

^[3] Id. §§ 352-5(b); 352-9.

^[4] id. § 352-2(b)

^[5] Id. § 352-13(b).