New Mexico marijuana business owners are urging a judge to not dismiss their lawsuit against U.S. Customs and Border Protection. The agency is accused of overreaching in seizing cannabis products that were legal under state law and detaining workers.
Plaintiffs have filed a response to CPB’s motion for dismissal of the case in January. They call it “a study in contradictory statements.”
It was pointed out to them that the federal agency, on one hand, claims they have no other choice than to enforce the ongoing federal prohibition law regardless of the state policies, but on the contrary, in reality, only interferes with New Mexico’s licensed market and does not take similar action against businesses in California and Arizona.
The argument is that marijuana is illegal Per se, It is a Schedule I controlled drug under the Controlled Substances Act.CSA“)), The CBP has the power to seize and hold those who are transporting marijuana without due process,” said businesses. “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).
Businesses claim in response to the question that the “state legalization of the past decade” has altered the paradigm.
The document states that “Mopar is a different drug than any other Schedule I drugs, so the federal government has to give a minimal amount of due process to marijuana users and enforce the laws equally.” “Plaintiffs respectfully ask that this Court refuse the motion to dismiss it in its entirety and stop the unlawful and unfair summarily seizures of New Mexico’s state-legal marijuana.”
The motion for dismissal by CBP is “mischaracterized”, it says.[ed] The Plaintiffs’ Claims and Ma[de] Arguments that cannot be resolved in this stage of pleading.”
The lawsuit was filed by eight New Mexico marijuana business representatives against the federal Government in the U.S. District Court for the District of New Mexico last October. 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 claimed that CBP’s action, taken without due procedure, violated protections provided by the Fifth Amendment against illegal searches and seizures. CBP, on the other hand, has rejected this challenge. They have moved to dismiss it due to “failure of stating a valid claim” and “lack subject matter jurisdiction.”
CBP’s motion to dismiss made more detailed challenges against the allegations in the complaint, including the seizure non-cannabis assets, such as vehicles and cash, that were used to transport marijuana. CBP said that the issue of the vehicles was moot, as the assets were returned to the plaintiffs prior to the filing of the lawsuit.
In addition, the government rejected plaintiffs’ argument that the “hands-off approach” of the federal government to state-level cannabis reforms was relevant to this case. They said, regardless of previous DOJ or Treasury Department policy guidance, and informal precedents, that there is nothing in the law currently that prevents DHS and CBP to continue to enforce federal prohibition.
The government stated that agents who are in contact with subjects found in possession of marijuana, in violation of federal laws, and whose substance is identified as hemp by a lab test, retain the appropriate authority to enforce the law. Even though New Mexico may have created a property right in Plaintiffs’ cannabis that is cognizable according to state law,” the government stated, “marijuana remains contraband as per federal law.”
In a new complaint, the plaintiffs claim that CBP has a position that involves “multiple shades of grey” which would allow it to have sweeping discretion in seizing products from some states and leaving others untouched.
It says that CBP is no longer required to enforce the CSA rigidly and seize any marijuana grown in states where it’s legal. CBP now wants to have the freedom to implement the CSA however it chooses. It’s okay if that means seizing state-legal pot at New Mexico checkpoints but not in Arizona or California.
In essence, the filing says, “what has happened in this case is that: (1) Congress broadened its authority on marijuana when it passed the CSA (Controlled Substances Act) in 1970; and (2) the Supreme Court affirmed federal powers 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.”
Cannabis businesses detailed in their original suit multiple CBP encounters during which employees were detained for many hours without any charges. The CBP did not address the reason for the arrests and simply defended its right to detain the employees.
Some members of Congress have taken note. 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? The CBP makes a lot money.”
On the phone, the governor said that CBP officials were trying to explain the confiscation of illicit fentanyl as the reason for the CBP interdiction of cannabis from legal businesses in the interior, especially around Las Cruces. As industry participants have noted, however, it appears that the increase in seizures of cannabis is largely limited to New Mexico. Other states, such as Arizona and California, also have licensed cannabis businesses near the Mexico border.
The agency began to be more aggressive in its enforcement of federal prohibitions last year. They seized hundreds of lbs of marijuana at state checkpoints. CBP can carry out their activities up to 100 miles from the U.S. Border.
CBP spokeswoman told MEDCAN24 that, “despite the fact that medical marijuana and recreational marijuana are legal in certain U.S. States, and Canada, marijuana sales, possession, production, and distribution, or any facilitation thereof, remain illegal according to U.S. Federal law due to marijuana’s classification as a Schedule I drug,” last year. CBP spokesperson told MEDCAN24 last year that individuals found violating the Controlled Substances Act while crossing the Border, at the U.S. ports of entry or Border Patrol checkpoints may be inadmissible, subject to seizure and/or fines and/or arrested.
CBP reminds the public, “while traveling through any U.S. Border Patrol border checkpoint, including New Mexico, possession of marijuana under federal law is prohibited,” it said.
CBP’s actions against state-legal marijuana business has also received pushback from other members in Congress.
You can read the full response of the plaintiffs to the Government’s motion for dismissal. Department of Homeland Security v. Mesilla Valley Extracts:
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