A group of New Mexico marijuana businesses is urging a federal judge not to dismiss its lawsuit against U.S. Customs and Border Protection (CBP) over the agency’s alleged overreach in seizing state-legal cannabis products and detaining industry workers.
In a new filing, plaintiffs call CPB’s January motion to dismiss the case “a study in contradictions.”
They pointed out that on the one hand, the agency claims it has no choice but to enforce ongoing federal prohibition laws regardless of state policy, while on the other hand in practice is only selectively interfering with New Mexico’s regulated market without carrying out similar actions against licensed businesses in states like California and Arizona.
“The argument goes that because marijuana is contraband per se (as a Schedule I controlled substance under the Controlled Substances Act (“CSA”)), CBP can seize it and detain those transporting it without any due process whatsoever,” the businesses said. “There is no nuance—no real discussion about the rescheduling process that is underway, no recognition that nearly every state has legalized marijuana, and no recognition that the federal government (including CBP) has for the last decade allowed those states to operate legal marijuana markets without interference.”
In its earlier filing, CBP argued that as long as marijuana remains federally prohibited, border agents are within their statutory right to disregard state law and seize the property—and that the limited protections that states with marijuana program enjoy under a congressional rider and Justice Department discretionary policies don’t apply to CBP, which falls under the Department of Homeland Security (DHS).
The businesses contend in their response that “state legalization in the last decade has changed the paradigm.”
“Because marijuana is now different than every other Schedule I drug, the federal government needs to provide a modicum of due process and it needs to enforce the law equally,” it says. “Plaintiffs respectfully request that this Court deny the motion to dismiss in its entirety, and put an end to the unlawful and unfair summary seizures of state-legal marijuana in New Mexico.”
It further asserts that CBP’s motion to dismiss “mischaracteriz[ed] Plaintiffs’ claims and ma[de] arguments that are not properly resolved at this pleading stage.”
Representatives of eight New Mexico marijuana businesses jointly filed the lawsuit against the federal government last October in the U.S. District Court for the District of New Mexico. That action came months after initial reports of CBP agents increasingly taking cannabis products and other assets from state licensees at border checkpoints throughout the state.
The plaintiffs have argued that CBP’s actions, without due process, violate protections against unlawful searches and seizures guaranteed under the Fifth Amendment. But CBP has contested the challenge, moving for dismissal over a “failure to state a claim upon which relief can be granted,” as well as a “lack of subject matter jurisdiction.”
CBP, in its motion to dismiss, made a series of more nuanced challenges to the complaint’s allegations, including about the seizure of non-cannabis assets such as cash and vehicles they used to transport the marijuana. The agency said the vehicle issue was moot because the property was “returned to Plaintiffs before this action was filed, so Plaintiffs lack standing to seek relief stemming from the seizures of those vehicles.”
Beyond that, the government contested plaintiffs’ argument that the federal government’s “hands-off” approach to state-level marijuana reform was relevant to the case at hand. The agencies simply said that, regardless of past DOJ and Treasury Department guidance or informal policy precedent, there’s nothing currently codified in law that bars DHS and CBP from continuing to enforce federal prohibition.
“Agents who encounter subjects in possession of marijuana in violation of federal law, based on a test identifying the substance as marijuana and not hemp, maintain appropriate enforcement authority,” the government said. “Here, even though New Mexico law may create a property interest in Plaintiffs’ marijuana cognizable under state law, marijuana remains contraband under federal law.”
The plaintiffs’ new filing complains that CBP’s position involves “several shades of gray” that would give the agency sweeping discretion to seize products in some states while leaving other state marijuana markets untouched.
“No longer is CBP required to rigidly enforce the CSA and seize all state-legal marijuana,” it says. “Now, CBP asks for wide latitude to enforce the CSA in any way it sees fit. If that means seizing all state-legal marijuana at checkpoints in New Mexico but not seizing that same marijuana in Arizona and California, so be it.”
“In essence, what has happened here,” the filing asserts, “is: (1) Congress broadly asserted its power over marijuana by passing the CSA in 1970; (2) the Supreme Court affirmed the scope of federal power in Raich; (3) the federal government subsequently ceded power over marijuana back to the states; (4) New Mexico and other states filled the gaps created by the federal “hands off” policy; and (5) one rogue agency—CBP—is now attempting to reassert federal authority over marijuana while ignoring the wholesale change in circumstance.”
In the original lawsuit, the cannabis businesses also detailed multiple CBP encounters where employees were detained, at time for hours on end, without being charged with any specific crimes. The agency didn’t address the nature of the detainments, and it simply maintained its legal authority to hold the workers.
The controversy has caught the attention of some in Congress. For example, Rep. Gabe Vasquez (D-NM) sought to amend appropriations legislation covering DHS by explicitly preventing U.S. border patrol agents from using funds to seize marijuana from state-licensed businesses.
Last April, New Mexico Gov. Michelle Lujan Grisham (D) could be heard saying on a leaked recording that she was “offended” when the secretary of the DHS reacted to her concern about the recent surge in CBP seizures of marijuana from legal operators in her state by saying, “Who cares? They make a lot of money.”
The governor also said on the call that CBP officials are trying to justify the interdictions of marijuana from state-legal businesses at interior checkpoints, primarily around the Las Cruces area, as a necessary consequence of seizing illicit fentanyl. However, as industry stakeholders have pointed out, the spike in cannabis seizures seems to be largely isolated to New Mexico, even though other states like Arizona and California also have legal cannabis operators near the Mexico border.
Beginning last year, the agency seemed to take a more proactive approach to enforcing federal prohibition, taking hundreds of pounds of cannabis at the checkpoints inside the state. CBP is able to carry out its activities within 100 miles of the U.S. border.
“Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law, given the classification of marijuana as a Schedule I controlled substance,” a CBP spokesperson told Marijuana Moment last year. ”Consequently, individuals violating the Controlled Substances Act encountered while crossing the border, arriving at a U.S. port of entry, or at a Border Patrol checkpoint may be deemed inadmissible and/or subject to, seizure, fines, and/or arrest.”
CBP “wants to remind the public that while traveling through any U.S. Border Patrol checkpoint, to include New Mexico, being in possession of marijuana is illegal under federal law,” they said.
CBP’s actions against state-legal marijuana business has also received pushback from other members in Congress.
Read the plaintiffs’ full opposition response to the government’s motion to dismiss the lawsuit, Mesilla Valley Extracts v. Department of Homeland Security:
Photo elements courtesy of rawpixel and Philip Steffan.
A group of New Mexico marijuana businesses is urging a federal judge not to dismiss its lawsuit against U.S. Customs and Border Protection (CBP) over the agency’s alleged overreach in seizing state-legal cannabis products and detaining industry workers. In a new filing, plaintiffs call CPB’s January motion to dismiss the case “a study in contradictions.” Read More
