Nevada County Attorney Discusses The Patchwork Problem


Criminal defense attorney Heather Burke of Nevada County, California, talks about cultivation issues and the looming death knell for growers in California’s mid-state counties.

What is the current situation for growers in Nevada County and the surrounding areas? 

Nevada County and the surrounding counties currently have a patchwork of bans that prohibit commercial cultivation or outdoor cultivation or both. Surprisingly, Placer County appears to be the only county ready to license the commercial cultivation of cannabis, including outdoor gardens.


For Nevada and Yuba counties, where both outdoor and commercial cultivation are banned, everything hinges on the June 7 election. Yuba County has a licensing scheme on its ballot that would allow outdoor cultivation. Nevada County has an even stronger ban on its ballot. If the Nevada County ban is voter approved, it will be essentially bulletproof, so the June vote is a huge deal in these counties.

Sierra, Butte, and El Dorado counties all allow personal cultivation outdoors, just not commercial. We’d like to see those counties open up to licensing, but their situation is not quite as serious as what’s up in Yuba and Nevada, since patients in Sierra, Butte, and El Dorado counties can at least grow their own plants under the sun.

What are the biggest issues facing California growers over the next twelve to twenty-four months? 

The local bans of outdoor and/or commercial cultivation are a death knell for growers in these areas once the dust from the Medical Marijuana Regulation and Safety Act (MMRSA) settles. Right now, a grower’s state law compliance is independent of their local ordinances, so growers can be in compliance with state law (Proposition 215 and SB 420) but in violation of the local ban, and vice versa. But MMRSA makes state and local laws interdependent, so growers can’t get a state license until they get a local permit. If they can’t get a local permit, they’re precluded from getting a state license. That means they’ll be committing a felony.

So, it has never been more important in the history of California cannabis that growers get involved in local politics, because its “do or die” time in any of the counties that have cultivation bans. Growers historically don’t like to show their faces in local meetings where the Sheriff also attends, so it’s an uncomfortable position at best, and there is absolutely some danger inherent in local politics. But if a grower can’t or won’t get involved or at least donate some serious cash to those are fighting the good fight, then the growers will have to move to another county, get a different job, or commit a felony. It’s as simple as that.

Do you see a pathway forward for cultivators to be able to grow in Nevada County?
Yes, but only if the ban on the June ballot is struck down. If not, then it’s game over in Nevada County, at least once MMRSA abolishes the old collective/cooperative model in about two to three years. But if the ban is struck down in June, we go back to the drawing board with the county. That’s why the June election is absolutely critical.

Are you concerned that patients’ needs will not be met as a result of the patchwork of laws?
I’m very concerned about those few patients who need a particular strain that can only be grown outdoors or under certain conditions the local bans make impossible. I work with a local family whose son has intractable epilepsy, and the Nevada County ban will preclude the cultivation of the only strain of cannabis that works for him. The ban also says that only a caregiver may grow for a patient but, in the case of these epileptic kids, the parent is the caregiver, making the transfer from the grower to the parent illegal. Its nonsensical and tragic.

The majority of patients surely will be inconvenienced and the quality of their cannabis will be impacted, but they should still be able to meet most of their medical needs.

What would you like to see the industry do to protect growers in California?
The industry really should be helping protect growers by donating to the local legalization efforts in the various counties. In other words, industry members should put their money where their mouth is. For example, numerous out-of-county dispensary operators came to speak against the ban in Nevada County. I don’t think those dispensaries have donated much, if anything, to the local groups working against the ban, even though their patients have benefited from the quality of the foothills’ herb for years. We need help, and lots of it.

Heather Burke is a criminal defender with offices in historic Nevada City, California. Her experience defending those accused of cannabis-related crimes in both state and federal courts, in addition to her unique one-on-one representation style, have achieved positive results in a variety of cases.