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California Agencies Win Discovery Stay in Hemp Destruction Dispute

Back in April 2020, Apothio sued the County of Kern and the California Department of Fish and Wildlife, alleging that in October 2019, state and county law enforcement agents entered its farm fields and ordered the destruction of 500 acres of hemp crops worth approximately $1 billion. Apothio claims the agencies’ search warrant was defective

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Back in April 2020, Apothio sued the County of Kern and the California Department of Fish and Wildlife, alleging that in October 2019, state and county law enforcement agents entered its farm fields and ordered the destruction of 500 acres of hemp crops worth approximately $1 billion. Apothio claims the agencies’ search warrant was defective because it included an incorrect description of Apothio’s principal, Trent Jones, the acreage grown, and because it ignored Apothio’s status as a research entity under California law. Most recently, the defendant agencies filed motions to dismiss Apothio’s case is in its entirety because its crops constitute contraband under federal law, and Apothio can not have a property interest in such contraband.

While the civil case commenced, Mr. Jones was then arraigned for criminal misdemeanor charges for the illegal cultivation and sale of marijuana (based on the facts of this case) in October 2020. Based on this development, the defendant agencies filed for a motion to stay discovery (essentially, pause discovery) in the case pending (1) completion of the criminal investigation of Mr. Jones, or (2) at least a decision on the motions to dismiss.

For everyone’s benefit, the Court issued a lengthy opinion breaking down its decision.  It started with the defendant agencies’ request to stay discovery pending completion of the criminal investigation. It noted: “a party has no constitutional right to a stay of civil proceedings during the pendency of a criminal investigation or prosecution, nor does the Constitution protect a party from being forced to choose between the consequences of asserting or waiving his Fifth Amendment rights in the civil proceedings.” In considering whether to issue a stay, the court should consider the extent to which the defendant’s Fifth Amendment rights are implicated, as well as the following five Keating factors:

  • The interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to the plaintiffs of a delay;
  • The burden which any particular aspect of the proceedings may impose on defendants;
  • The convenience of the court in the management of its cases, and the efficient use of judicial resources;
  • The interests of persons not parties to the civil litigation; and
  • The interest of the public in the pending civil and criminal litigation.

Overall, the Court was not convinced that Mr. Jones’ Fifth Amendment privilege would implicate great issues in the civil case:

Even if the criminal case cause Jones, in his individual capacity, to assert his Fifth Amendment privilege given the factual and legal overlap between the investigation and the civil case here, corporate defendants are entitled to no such privilege. Nor does the privilege extend to corporate records. Moreover, a custodian of corporate records “has no privilege to refuse production [even if] their contents tend to incriminate him.” … Defendants may still elicit valuable testimony from unnamed corporate representatives and compel production of relevant records given the inapplicability of the Fifth Amendment privilege to the corporate entities. The extent to which Jones’s Fifth Amendment rights are implicated does not warrant a stay of this action. (Citations omitted).

The Court then discussed each Keating factor, finding that on balance, those factors favored Apothio’s position as well:

  • “This factor weighs in [Apothio’s] favor” – Apothio had claimed an interest in collecting evidence while it is still fresh, before witnesses’ memories fade and evidence becomes stale; Apothio had also claimed its continued financial viability was threatened as long as the litigation continued.
  • “To the extent that the Plaintiff is attempting to misuse the civil discovery process and obtain materials from an ongoing criminal investigation, the Court finds that a stay would be warranted” – this was incredibly fact-dependent and was largely a wash.
  • “This factor weighs in Plaintiff’s favor” – Apothio had contended the efficient use of judicial resources would be to proceed with discovery, as that could lead to a quicker resolution of the case and facilitate realistic settlement negotiations.
  • As to the interest of parties and non-parties, the Court found that the general principle of “the public has an interest in relatively speedy resolution of civil matters” to outweigh any argument the defendant agencies provided.

Ultimately, the Court refused to stay discovery based on the ongoing criminal proceedings. However, it then considered the defendant agencies’ request to stay discovery pending resolution of their motions to dismiss. In deciding this issue, it noted the overall consideration would be to balance “the harm produced by a delay in discovery against the possibility that the motion will be granted and entirely eliminate the need for such discovery.” Two requirements must be met for a stay to be issued:

  • The pending motion must be potentially dispositive of the entire case, or at least dispositive on the issue at which discovery is aimed.
  • The pending, potentially dispositive motion can be decided absent additional discovery.

As to the first prong, the defendant agencies argued their pending motions to dismiss will dispose of the complaint essentially because Apothio’s crops are legally and factually contraband under federal law, and Apothio can have no property interest in such contraband. The Court agreed, writing it had taken a “preliminary peek” at Apothio’s opposition and found it unconvincing on its face, without any need for further discovery. Therefore, the Court granted the defendant agencies’ request for a stay pending a decision on their motions to dismiss. This was a pretty big blow to Apothio – now, the parties are essentially frozen in their efforts until the defendants’ motions are heard.

This case and opinion will definitely be one to watch – not only for the high stakes at play, but also for the insight into how civil and criminal proceedings intersect, how the federal courts are generally looking at and treating hemp companies, and the deference shown to government agency parties. We will report back when the motions are heard, as that decision will certainly be telling.

The post California Agencies Win Discovery Stay in Hemp Destruction Dispute appeared first on Harris Bricken.

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Growing

How to Identify Pests in Your Cannabis Grow

Experienced and novice cannabis growers alike understand that pests can ruin a crop, no matter how well watered, fed, or tended. One of the keys to making sure that your plants grow into healthy, robust, and consumable cannabis is to keep a close eye o…

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Experienced and novice cannabis growers alike understand that pests can ruin a crop, no matter how well watered, fed, or tended. One of the keys to making sure that your plants grow into healthy, robust, and consumable cannabis is to keep a close eye on any pests that might infiltrate your grow, then take the appropriate steps to eradicate them without ruining your garden. Not only will it help keep the plants alive, thriving plants have more energy to produce trichomes and terpenes, making for better bud

Let’s take a look at some common pests found on cannabis plants, how to identify them, and lastly, get rid of them for good. With just a little maintenance and vigilance, your cannabis garden can be pest-free.

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Common Pests Found on Cannabis Plants

According to the Smithsonian Institution, there are likely more unclassified insects in the world than classified, and the running guess is somewhere between 2 million and 30 million. Thus, this is by no means a definitive list of bugs that feed on cannabis but should serve as a good starting point for most pest problems. 

Caterpillars

Before a caterpillar turns into a beautiful butterfly and flits away, it can be very hazardous to your cannabis plants. You know that book The Very Hungry Caterpillar? Turns out it’s a true story about how caterpillars eat everything in sight, including that tasty cannabis. Caterpillars can be very dangerous because they tend to go unnoticed, especially if they are a borer caterpillar, meaning they burrow into the plant and eat it from the inside out. But even caterpillars on the exterior will nosh away, potentially causing great damage to your plants. 

To figure out if caterpillars are ruining your plants, inspect the leaves weekly for holes from feeding, droppings on the leaves that look like tiny black specks, holes, and damage to the stems, and yellowing on upper leaves.

Natural enemies of caterpillars are wasps and praying mantises, and introducing those to the environment could make a difference. These options are typically easier for outdoor grows, but can also work indoors with some preparation. Other interventions include using a product like Bug Blaster spray or neem oil (which you can make at home).

Neem oil use has been controversial in some cannabis circles, as there is a belief among some that it may play a role in CHS (Cannabis Hyperemesis Syndrome), however, no definitive statements can be made without more research. The connection between neem oil and cannabis hyperemesis syndrome has yet to be fully explored or verified, but it’s still good to be aware and to be sure to closely follow usage directions.

Aphids

Even house plants have the occasional plague of aphids. Tiny and red, yellow, black, pale, green, or brown, these bugs can be easy to miss because they cling to the underside of leaves, reproduce quickly, and drain your plant of nutrients. Outdoor grows tend to fare a little better in the battle against aphids since natural predators are present, but indoor plants can be decimated quickly by these teensy pests. Not only do they siphon nutrients away from the plant, they leave a sweet substance called “honeydew” that attracts other insects and turns the leaves black and moldy

Aphids and their honeydew on a plant

The honeydew left behind from aphids leads to further damages to the plant by attracting even more pests. photo credit

Because that honeydew attracts other pests, if you begin to notice a lot of ants or ladybugs coming around your plants, it’s a pretty good sign that you’re well into an aphid problem. Aphids can be hard to shake, but wasps and ladybugs are natural predators. Nonetheless, you should visually inspect the underside of plant leaves at least once a week. If introducing predators doesn’t ameliorate the problem, there are a couple of natural solutions to get rid of cannabis pests to try, like garlic or tomato leaf water. 

Spider Mites

Spider mites are like the supervillains of cannabis pests: uber reproductive, zombie-like in their ability to come back from what you thought was death, capable of spinning webs while eating everything in sight then completely disappearing before turning up again – they’re nearly impossible to spot and even harder to eradicate. Spotting spider mites is difficult because they are minuscule, but doing a daily inspection of both sides of your plant leaves could help to prevent a massive infestation.

Signs of spider mites begins with speckles, then a browning or yellowing of leaves, and premature leaf death.

If any parts of your plant are covered in fine webbing, that’s a sure sign you’re in a bad spot. The best way to avoid mites is to stay vigilant with your leaf inspections. If you do notice signs of mites, try introducing a fan into the environment. Strong air currents make it difficult for mites to breed. Spider mites also prefer temperatures of 60-80 degrees, so experimenting with temperature might also slow an infestation down. Since mites are likely to come back, consider a spray like Azamax or Spinosad to get rid of them for good (again, be sure to follow use directions carefully).

Fungus Gnats

Fungus gnats are just as hungry as caterpillars, but their gourmet meal is from the stem and roots of your plants and not the leaves. Beginning at the topsoil level, both larvae and adults will munch their way down into the root system, badly impact plant drainage, and compromise the structural stability of your plants. However, they’re nearly impossible to spot because they are dark in color, as is soil.

Fungus Gnats

Although fungus gnats are small, the damage they leave behind is mighty. photo credit

Seeing swarms of gnats near the base of your plant is one sign you’ve got a fungus gnat problem. Other symptoms are stems that weaken and simply fall over, adult plants that start to droop, wilt, spot, or yellow, or plants that stop growing altogether. 

Fungus gnats love moist conditions, so keeping the top layer of soil dry is a smart preventative measure. Some other hacks to try include placing a cloth on top of the soil to prevent female gnats from laying eggs or laying a sticky pad near the plant’s base to stick larvae. You could also mix some peroxide and water and spray it around the area of gnat infestation. A common-sense tactic for an indoor grow is to put screens on the windows and the doors closed to keep gnats out. 

Why Pests and Bugs Are Attracted to Cannabis

Something to keep in mind about pests, in general, is that they love a monoculture or a space dedicated to growing only one crop. Researchers from the University of California Davis theorize that if an insect makes itself at home in that one crop, it has a large food supply, creating an all-you-can-eat kind of scenario for the pest, making it that much harder to eradicate. As you likely don’t want to introduce other plants into a cannabis garden (for a number of reasons), this issue will always exist to some degree when dealing with weed. 

This is why, as mentioned, another option is to introduce other beneficial insects. Not only do they prey on harmful pests, but they are also an excellent chemical-free pest control option. The bugs already want to be there, you’re just bringing them to the dinner table. 

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The Wrap Up

Identifying pests should be a regular ritual, just like watering and delivering nutrients to your plants. When you keep them pest-free, all that hard growing work will hopefully pay off in healthy and efficacious plants. Once you’ve harvested, you can move on to other fun challenges like doing a proper cure for your cannabis harvest, and how to store your cannabis stash


How do you deal with pests in your cannabis grow? Share your techniques in the comments!

Photo Credit: ilovegrowingmarijuana (license)

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Connecticut

Governor of Connecticut Pushes For Legalizing Adult-Use Cannabis In Budget Address

Connecticut’s Governor Ned Lamont proposed legalizing recreational cannabis in his budget address this week.

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Connecticut’s Governor Ned Lamont proposed legalizing recreational cannabis in his budget address this week.

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News

South Dakota Governor Delays Implementation of Medical Marijuana Initiative

It seems that Governor Kristi Noem isn’t quite done derailing voter-approved cannabis initiatives.

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It seems that Governor Kristi Noem isn’t quite done derailing voter-approved cannabis initiatives.

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