The U.S. Customs and Border Protection (CBP) and Department of Homeland Security (DHS) are asking a federal judge to dismiss a case brought by New Mexico-licensed cannabis businesses. The businesses allege that the agencies unlawfully seized state-regulated cannabis products and arrested staff members at checkpoints within the state.
According to CBP and DHS, federal law takes precedence over state law as long as cannabis remains prohibited at the federal level. They argue that border agents are authorized to disregard state regulations and seize cannabis products. Furthermore, they assert that protections afforded to state cannabis programs through the Department of Justice (DOJ) policies and congressional rider do not extend to CBP, which operates under DHS.
The lawsuit, brought by 8 New Mexico cannabis businesses, was filed in October last year after reports surfaced of CBP agents seizing products and other property from state-licensed cannabis businesses at border checkpoints across New Mexico.
The businesses claim these actions violate the Fifth Amendment by conducting seizures and searches without following proper procedures. CBP has countered this argument, requesting the case be dismissed on grounds of insufficient claims and lack of jurisdiction.
The lawsuit further describes incidents where CBP detained cannabis business employees for extended periods without filing charges. Although CBP did not directly address these detentions, it maintained its authority to detain individuals under current federal law.
The agency also addressed specific complaints, such as the seizure of non-marijuana property assets like vehicles and cash. CBP argued that since the vehicles were returned to the plaintiffs before the lawsuit was filed, the issue is moot, and the plaintiffs lack standing to seek further relief.
In response to allegations that their actions contradict federal regulations and policy precedents, CBP emphasized that protections for state cannabis programs only apply to the DOJ under a congressional rider and do not extend to DHS or its agencies. Additionally, they rejected claims that prior Treasury Department or DOJ guidance on cannabis reform has any legal bearing, stating that federal law continues to prohibit cannabis and provides no exceptions for CBP or DHS to stop enforcing those restrictions. CBP and DHS also reiterated that cannabis is still classified as a Schedule 1 substance under the CSA.
The plaintiffs are asking the court to require CBP to provide documentation of seized property, return the items or compensate them for their value, and establish a process to contest future seizures in compliance with the Fifth Amendment.
The issue has also drawn attention from legislators, with Representative Gabe Vasquez proposing an amendment to appropriations legislation for DHS, aiming to restrict border agents from using federal funds to confiscate cannabis products from state-licensed operators.
The marijuana industry and its leading firms like Aurora Cannabis Inc. (NASDAQ: ACB) (TSX: ACB) will be hoping that the court system clears the air on whether it is acceptable for Border Patrol to seize cannabis products from licensed companies that are conducting their legitimate business activities in states bordering neighboring countries.
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