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10.10.07

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Nūz: Watsonville and Scotts Valley gear up for a fight over who's going to get stuck building houses.

Pot Case Filed

Within the next month, the Wo/Men's Alliance for Medical Marijuana (WAMM), along with the city and county of Santa Cruz, will be back in the San Jose District Federal Court arguing for an injunction against federal agents entering their land. This suit is a "rebriefing" of a suit that was filed on July 12 of this year, which also sought damages for a 2002 raid by Department of Drug Enforcement (DEA) officers on WAMM's Santa Cruz collective marijuana garden.The case has had a thorny legal history. On Sept. 1, WAMM won a pre-emptive prosecutory application of the medical necessity defense from the court, which essentially warns the DEA that if it comes back to WAMM's garden again it'll be seen as harassment of legally protected medical marijuana users. However, there was no decision against the DEA, because the plaintiffs had not established a pattern of aggression against WAMM, and the rest of the case was put on hold.

After that judgment the lawyers for the plaintiffs reworked their briefs and by early October they were ready to walk back into court, this time with the 10th amendment of the U.S. Constitution in hand. This amendment reserves powers "not delegated to the United States by the Constitution, nor prohibited by it" for the states or the people.

Lawyers for the plaintiffs will argue that the federal government is illegitimately trying to prevent the state of California from applying its Compassionate Use Act, voted on by "the people" and implemented by "the state" in 1996, by consistently raiding legal medical marijuana distributors and blocking efforts by Santa Cruz and others to set up an ordered system to identify legitimate medical needs and safely provide users with their medicine.

The Santa Cruz City Council voted in October 2005 to create a Compassionate Use Office to distribute marijuana to patients who had received a doctor's prescription. WAMM co-founders Valerie and Mike Corral were among those deputized to carry out this function as city officials.

Ben Rice, one of the attorneys representing the county, believes there is a clear goal behind the actions of the federal government: to create enough confusion that California lawmakers will be forced to declare all marijuana illegal again because regulating the plant and clearly identifying legitimate medical users is too difficult.

"The raids all across the state make it hard for legislators to determine who is and who isn't qualified to receive medical marijuana," says Rice. "That's called 'commandeering,' or forcing a state to legislate in a different way than it is currently."

In other words, the federal government is deliberately attempting to interfere with the effective implementation of a law that was approved by the people and the state, hence violating both groups' rights under the 10th Amendment.

"The problem is we have all these gray areas," says Rice. "So the city of Santa Cruz is attempting to come up with these guidelines and dispensaries. How are patients who can't grow going to get their medicine?"

Today Santa Cruz has two medical marijuana dispensaries, but the Compassionate Use Office is on hold until councilmembers are assured that the federal government will not bring legal action against them. Obtaining that guarantee is one of the reasons the city latched onto the lawsuit.

This case joins a number of others in attempting to work through the gray areas of the newly emerging realm of medical marijuana law, including a case against Felton resident Roger Mentch, who was arrested in 2003 for providing 10 to 15 patients with marijuana on the grounds that he didn't fit into the legal definition of a caregiver.

While the medical marijuana debate has been fought recently with the weapons of overwhelming police force and lawyers, Corral and others at WAMM hope Congress will eventually take up the issue and put an end to the costly and time-consuming cross-agency bickering.

"The Supreme Court now is very much like the McCarthy court of the '50s," says Corral. "What we really need here is an act of Congress."

Mi Casa? Su Casa!

Here it is, less than 10 months since the last round of battles between local cities and counties over where to build that pesky housing stock, and already the battles have started again courtesy of a new state-mandated "planning period" that demands new local housing plans by August of 2008. At this moment, trouble is brewing between Scotts Valley and Watsonville as to how many units each will accommodate.

The historical genesis of these struggles lies in a decision by former governor and current California attorney general Jerry Brown, who noticed late-'70s California replicating East Coast-style segregation patterns, and pressed into law a requirement that all communities in the state not only house all social classes who live within their boundaries, but prove to the state that they're doing so.

How? By demanding that each local government turn in to the state a new element in each of its cyclic general plans: a housing element. Out of that, in turn, grew a system in which the state Department of Finance sent population growth projections and housing shortage estimates, every five to seven years, to each region's Council of Government. For Santa Cruz and Monterey counties, that's the Association of Monterey Bay Area Governments (AMBAG).

The last time AMBAG got the numbers, in the year 2001, the counties of Santa Cruz and Monterey fought over them so vociferously that AMBAG nearly split up. Santa Cruz County's governments, hit with a demand for some 58 percent of the 23,130 units required, threatened to quit AMBAG altogether, and sued in both local court and the state appeals circuit court for "relief," claiming that Monterey County was growing far more quickly.

Yes, it is, said the state Department of Finance, but it's generating fewer new households, since its majority Latino population stays in original childhood homes till much later in life. This ethnicity-based distinction, though statistically proven nationally and internationally, set off charges of state "racism," which further fueled the calls for a north-vs.-south lawsuit. Which was filed, by Santa Cruz County and its four cities, and which lost, again and again, at every judicial level.

Finally, when California Rural Legal Assistance sued Santa Cruz County for 13 years of lollygagging, even the county itself submitted to state law, and local housing elements started pouring in to the state.

This time around, although the numbers appear less contentious (25,315 units total, 79 percent assigned to Monterey County and 21 percent to Santa Cruz County), there's already a dispute. Watsonville, pointing to the fact that it's the only local jurisdiction in our county to have rezoned and deregulated sufficiently to meet 100 percent of its last planning period's quota (the city of Santa Cruz is at 63 percent; Capitola, Scotts Valley and the county, at 35 percent or less), wants the others to take some 500 of its over 2,000-unit assignment. Scotts Valley has already put together a proposed ordinance refusing to do so.

Next stage? Wednesday, Oct. 10, as this issue appears on the street, AMBAG members will meet in Marina to fight it out. Nūz and fellow Metro Santa Cruz accomplices will be there to report. Stay tuned.

Pheromone Record

Just as the Oct. 2 light brown apple moth (LBAM) eradication meeting held at Simpkins Swim Center was disintegrating into an emotionally charged shouting match, a levelheaded and nuanced comment was lodged in the direction of California Department of Food and Agriculture Secretary A.G. Kawamura.

"Pheromone treatments have never proven effective in eradication projects. They have only been used for control of pests."

The comment was quickly buried in an avalanche of unrelated angry yelling, and a rebuttal was never offered. But the point, and the fact that UCSC Arboretum director Daniel Harder had raised it, got Nūz's attention.

So Nūz decided to find out if the pheromone mating disruption technique, which has been used increasingly since it came on the integrated pest management (IPM) scene in the mid-'80s, has previously proven effective in eradicating invasive pests from California's landscape. After all, if it doesn't work, why risk spraying undisclosed chemicals on an urban area?

From what Nūz could dig up in the days following the meeting, pheromone mating disruption has met with mixed results. In the studies Nūz found, it has required "supplemental spraying" of pesticides following the pheromone release to kill off the progeny of any lucky males that actually found female mates.

The first study comes out of the University of California's Agriculture and Natural Resources Division. Researchers partnered with growers in the Sacramento and San Joaquin valleys to hang a material saturated in the pheromones of the female oriental fruit moth and peach twig borer on the tree canopy surrounding peach orchards. In 1995, at the end of the eight-year study, researchers found some impressive results: 87 percent of monitoring traps in the Sacramento Valley had lowered their seasonal catches to two or fewer of the pests. But this promising result was quickly qualified by the fact that, in the San Joaquin Valley, only 38 percent of study areas saw this level of reduction; growers eventually were forced to conduct supplemental spraying of conventional pesticides in both valleys. Not exactly a raging success.

Another study, this one from Capay, Calif., in 1992, found that the technique knocked down fruit damage from the codling moth in pear orchards to less than 0.5 percent of total harvest. Close, but no eradication cigar.

While neither of these studies involved aerial spraying, Nūz wonders if they can shed light on the future of LBAM eradication efforts in the Santa Cruz area.

Not really, said CDFA spokesman Steve Lyle, noting that it's "difficult to extrapolate conclusions for this pest from experiences with other pests." Lyle also said experts from the technical working group believe pheromones alone can eradicate the moth at this stage of the infestation. He added that no onae has tried to eradicate this pest before because it is usually too well established upon discovery.

LBAM technical working group member and UC-Riverside entomology expert Dr. Marshall Johnson said it is conceivable that after a few months of aerial application of the pheromone, crews supplied with the organic pesticide BT—a naturally occurring bacteria that produces a protein toxic to certain types of insects—might hit hot spots where the pheromone didn't work completely.

Another question has come from opponents of aerial spraying: What about using spot applications of pheromones from the ground? State officials at the Oct. 2 meeting said the area in Santa Cruz was too large for this, but the technique proved useful in eradicating the oriental fruit fly from Santa Barbara County last year. Under this program, the pesticide Naled was mixed with the female pheromone and applied to utility poles and trees in the infestation area. The male moths were attracted to the pheromone and then poisoned by the Naled. Bill Gillette, director of the Santa Barbara Agriculture Commission, said this worked in getting rid of that fly in his county, but that other counties, including Santa Clara, are still battling more recent infestations with this technique.

CDFA spokesman Lyle is confident the goal of eradication is not overreaching, saying a sufficient soaking of the airspace with the Checkmate pheromone will confuse the male moths to the point of "analysis paralysis" and their reproductive systems will shut down from sheer oversaturation.

Regardless of whether or not eradication is actually achieved, the spraying will show trading partners that California is doing everything it can, within reason, to get rid of the pest.

Secretary Kawamura repeatedly cited protecting the ability of California growers to maintain their international and interstate trade connections as a reason for adopting the goal of eradication, something Harder believes is also at the heart of the decision to use the high-profile planes to spray the pheromone.

"Adopting a goal of eradication and showing that the state is spraying will affect the attitudes of Mexico and Canada," both of which currently have trade restrictions on California goods in place due to the LBAM infestation, says Harder.


Nūz just loves juicy tips about Santa Cruz County politics.

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