Calif. County’s Motion Denied in Water Ordinance Case Preventing Commercial Cannabis Cultivation

On Thursday, Chief District Judge Kimberly J. Mueller of the Eastern District of California issued an order in a suit against a California county denying the county’s motion to dissolve a preliminary injunction blocking two city ordinances. 

According to the order, for several years, Siskiyou County has been attempting to stop and limit commercial cannabis cultivation within its borders. To further this effort, the order states that Siskiyou County banned commercial cannabis cultivation in 2015 and banned the use of groundwater for illegal cannabis cultivation in 2020. The order states that, after the ordinances were adopted, violent crime spiked in many places where marijuana was illegally grown and traditional law enforcement efforts were ineffective or prohibitively expensive to curb the problem. 

In 2021, the county implemented two emergency ordinances to curb the issue after the county became aware that most commercial cannabis growers irrigate their crops with well water delivered by truck. The first ordinance requires permits for groundwater extraction for use off-parcel and the other imposes a permit requirement for transporting groundwater by truck. 

However, according to the court’s order, these emergency permits would likely cut off the water supply to the Mount Shasta Vista Subdivision within Siskiyou County’s borders. The complaint states that Mount Shasta Vista has a heavy concentration of illegal cannabis growers, but is also a predominantly Hmong community that has not established legal residences or obtained building permits that could not or would not obtain water extraction and trucking permits. As a result, this community does not have a permanent source of usable water, relying on trucked-in water, which is subject to the county’s recent ban.

Accordingly, in June 2021, several Hmong people from Shasta Vista filed this lawsuit to challenge the emergency permits, seeking a temporary restraining order and a preliminary injunction, claiming the county’s ordinances deprived them of rights under the Fourteenth Amendment’s Due Process and Equal Protection clauses. The court denied their request for a temporary restraining order, but later granted their motion for a preliminary injunction. 

When the court granted the preliminary injunction, it noted the county could move to dissolve that injunction if it adopted new ordinances that do not impose the same burdens and do not weigh unfairly on Hmong community members. On February 18, 2022, the county filed a motion to dissolve the preliminary injunction after the county board of supervisors modified the ordinance through resolutions. 

However, the court’s present order denied the county’s motion stating that the changes to the ordinances resolve some concerns and reduce the chance people will go without water for their basic needs, but the county has not established that the injunction is no longer warranted. Specifically, the court stated that the county has not proven that no serious questions remain about the plaintiffs’ equal protection claim or shown that the plaintiffs are no longer likely to suffer irreparable harm in the absence of a preliminary injunction.

Additionally, the court found that a renewed settlement effort would be productive and referred the lawsuit to a settlement conference.

The plaintiffs are represented by Margolin & Lawrence and the defendants are represented by Spinelli Donald & Nott