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The Humboldt County Board of Supervisors improperly expanded the scope of the county’s cannabis cultivation tax, a three-judge panel affirmed Thursday in California’s 1st District Court of Appeals.

The case involves amendments to Measure S, the county’s commercial marijuana cultivation tax, which voters approved in 2016. Thursday’s decision upholds last year’s trial court ruling, in which Humboldt County Superior Court Judge Kelly Neel found that the supervisors messed up by passing amendments that changed who and what is taxed as well as when taxes accrue under the measure. 

Originally, the measure worked like this: Each person engaged in legal commercial cannabis cultivation in the county’s unincorporated areas had to pay a tax of $1 per square foot of outdoor cultivation area, $2 per square foot of mixed-light cultivation area or $3 per square foot of indoor cultivation area. 

Amendments passed by the board in 2017 and 2018 changed it to where property owners were responsible for paying the tax, rather than growers, and the entire permitted growing area was subject to taxation, rather than just the area where cultivation was actually occurring. The amendments also changed when taxes start accruing — from the date when cultivation begins to the date when the county issues a permit, regardless of whether any growing ever takes place.

None of those changes were kosher, Neel ruled last year, and on Thursday, the appellate court judges agreed.

The county’s grounds for appeal were procedural. For one, county attorneys argued that the primary plaintiff, a grower named Karen Silva, didn’t have grounds to sue because she hadn’t exhausted all available administrative remedies before taking the matter to court.

The appeals court judges weren’t convinced by that argument. Their ruling says the county didn’t provide a a clear legal process for Silva to register her objections to the Measure S amendments. 

The county also argued that the amendments the board passed merely served to clarify ambiguous language in the original measure. “We disagree,” the appellate court ruling states, adding, “We discern no such ambiguity.”

Ultimately, the county expanded who gets taxed, what gets taxed and when — all without voter approval, the court found.

The original case was filed by HuMMAP (the Humboldt-Mendocino Marijuana Advocacy Project), the Humboldt Cannabis Taxpayers’ Association and the Humboldt Voters’ Association, represented by attorneys Eugene “Ed” Denson and Fred Fletcher. Silva was added as a petitioner/plaintiff in a first amended complaint and had standing for the appeal, in which plaintiffs were represented by Denson and SoHum attorney Richard Jay Moller.

“The County should be ashamed for wasting so much money on this litigation,” Moller said in an email to local media Thursday.

Robert “Woods” Sutherland, a SoHum cannabis activist behind HuMMAP, said the county was “kind of grasping at straws” in its oral arguments to the court. 

Moller believes this decision is “bullet-proof” against further appeal, but in an emailed statement, Humboldt County spokesperson and Deputy County Administrative Officer Sean Quincey said, “The County is disappointed with the Court’s ruling and considering its options with respect to the litigation. However, it does wish to maintain a collaborative relationship with cannabis growers in the County and will continue dialog with growers and their representatives regardless of the outcome of this suit.”

It’s not yet clear whether the county will have to reimburse all the property owners and growers who overpaid their taxes due to the amendments. We reached out to Quincey for an answer on that but have yet to hear back. 

At the very least, the plaintiffs are entitled to recover the costs of the appeal. Read the full decision below.

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DOCUMENT: Karen Silva, et al. v. Humboldt County