A judge’s decision on a lawsuit against the U.S. Department of Homeland Security (DHS) and Customs and Border Protection (CBP) could affect the fate of hundreds of legal cannabis operators in New Mexico. The lawsuit seeks to halt Border Patrol from seizing legal cannabis and vehicles from state-licensed businesses at interior border checkpoints. It also seeks the return of seized goods and compensation.
Advocates say the case has entered a critical moment. Following a recent attempt by the feds to get the case dismissed, the judge is expected to decide in the coming weeks whether to allow oral arguments. Matt Kennicott, CEO and co-founder of cannabis industry association The Plug, says the entire case could hinge on the decision.
“Oral arguments would really give us a great chance of getting this case to the next level,” he says. “That’s what we’re really hoping for.”
Kennicott says he believes the case could have a huge impact on cannabis in New Mexico, with ramifications that could affect industry stakeholders in other parts of the country.
“This could be a precedent-setting case for the entire industry nationwide,” he says. “We’re obviously not the only border state with with legal cannabis. This is something that could get kicked up further in the courts and potentially end up in the Supreme Court — just because of the nature of the case.”
The lawsuit is in response to a series of product and cash seizures of legal marijuana made over the last year at interior Border Patrol checkpoints. State-licensed cannabis operators have seemingly been targeted by Border Patrol agents, who have reportedly seized millions of dollars worth of legal, state-approved marijuana.
Cannabis operators who have been targeted have been left in a bind, as state leaders and Gov. Michelle Lujan Grisham have had no luck in attempting to work out a solution with the feds. Companies have no legal recourse to regain their seized products and cash, and Border Patrol refuses to recognize their licensed status.
Worse yet, the seizures have left many businesses in the southern half of the state trapped, as they can’t ship their products north, and it’s become even tougher to get those products to state-approved testing labs (many of which are located north of the checkpoints).
Kennicott says the root of the issue is hard to nail down, since other states that have legalized cannabis aren’t reporting friction between feds and legal operators at their interior checkpoints. The problem seems to only be affecting New Mexico.
“You have 39 states where cannabis is legal,” says Kennicott. “A bunch of those states are on the border — either with Mexico or Canada — and the only place where seizures are happening is New Mexico.”
Kennicott says Border Patrol isn’t maintaining the same policy across the nation and is failing to consistently enact its policies. “We should be treated like the other states and not have these seizures happening.”
The lawsuit was filed after repeated attempts to discuss the issue with CBP leadership failed. In March Kennicott reached out to interim Border Patrol Chief Walter Slosar of the El Paso Sector, which includes New Mexico, on behalf of the operators involved in the lawsuit. Kennicott requested a meeting with Slosar and his staff to discuss the case, but the chief never responded.
For its part, the Border Patrol has maintained that its policies have not changed and that it doesn’t recognize New Mexico’s cannabis laws. In an email sent to The Paper. last year, a CBP representative wrote: “Although legal for medical and/or recreational use in many states, marijuana is classified as a Schedule I controlled substance under federal law. Therefore, U.S. Border Patrol agents will continue to take appropriate enforcement action against those who are encountered in possession of marijuana anywhere in the United States.”
But the agency’s insistence on continued harassment of state operators appears to run counter to its stated purpose for existence. According to the CBP website, the agency’s mission is to “protect the American people, safeguard our borders and enhance the nation’s economic prosperity.” But the seizures have led to temporary confinement of law-abiding American citizens and have caused economic suffering for taxpaying businesses. The seizures have also arguably helped to enrich foreign drug merchants, since they potentially cut consumers off from legal sources of weed and push them toward the illicit market.
“We obviously need policy change so the feds are not seizing legal cannabis, and they’re not harming operators, and they’re not taking away from the tax base, and they’re not driving people back to the illicit market,” says Kennicott.
If the judge does decide to allow oral arguments in the lawsuit, the plaintiffs will still have a hard road ahead of them as they try to prove their case. But Kennicott says the legal team representing the businesses is confident about its chances.
And if the judge does end up ruling in CBP’s favor, Kennicott says the battle will still continue. “This is a fight we’ll keep on,” he says. To bring more awareness to the issue, Kennicott and his colleagues have set up a new website, Stop Weed Seizures (stopweedseizures.com), that gives users a portal to details about the seizures, a timeline on the incidents and updates on the case. A petition to the New Mexico Congressional Delegation can also be found on the site. The petition calls for the delegates to advocate for Border Patrol policy changes at the federal level.