Marijuana reclassification unlikely to end cannabis seizures near border

May 3—While the proposed reclassification of marijuana as a lower-risk drug under federal law signifies a big shift in national drug policy — symbolically, at least — it is unlikely to stop the seizure of cannabis from state-licensed distributors in New Mexico.

Businesses hauling recreational and medicinal cannabis say they have lost more than $300,000 worth of products at U.S. Border Patrol checkpoints in Southern New Mexico, the Associated Press reported last month.

Gov. Michelle Lujan Grisham and advocates don't believe federal seizure of state-regulated cannabis will change with the U.S. Drug Enforcement Administration's proposed rescheduling of cannabis from a Schedule I drug to a Schedule III drug.

Still, Lujan Grisham expressed optimism the proposed rescheduling would lead to other changes.

"I don't know if this by itself will [end the seizure of state-approved cannabis at border checkpoints], but it gives me another argument that there is no reason for them to be engaged in that," she said. "I expect we will get this ironed out sooner rather than later. I do."

Maritza Perez Medina, director of the Drug Policy Alliance's Office of Federal Affairs, said the proposed change is significant in the sense the federal government is recognizing for the first time that marijuana has medical value.

"But as far as the impact in the lives of everyday people, not very significant because little will change — the status quo will continue," she said, including at border checkpoints. "It will still be a criminalized substance."

Perez Medina said the federal government would have to deschehdule, or decriminalize, marijuana altogether to "drastically change the border dynamics."

Despite objections from Lujan Grisham, the seizure of state-approved cannabis passing through border checkpoints has been happening for months.

A dispute between the governor and Homeland Security Secretary Alejandro Mayorkas went public days after the Associated Press report. An unauthorized recording of Lujan Grisham airing her unfiltered grievances to an unidentified high-ranking official in the Biden administration was posted on the social media platform X, formerly known as Twitter.

"I've held off the press," the governor said in the recording, referring to a slew of news media inquiries about the cannabis seizures.

"I got a nasty, 'The governor's feckless and is going to let Biden walk all over her.' I can't have that," she said.

After the story blew up, Lujan Grisham took to social media to "set the record straight."

"My candid conversation reveals my commitment to our small businesses and patients who rely on medicinal cannabis," she wrote in a post that has generated more than 39,000 views. "Frustration with federal interference highlights my dedication to fighting for what's right for New Mexicans."

Nick Spoor, operations manager for Top Crop Cannabis Co. and Dark Matter Cannabis, is among the state's licensed distributors who have been caught in the crosshairs.

He said Border Patrol agents confiscated 22 pounds of state-regulated marijuana with a retail value of about $130,000 to $140,000 on Valentine's Day. He was transporting the product from the companies' cultivation facility in Las Cruces to their stores in Albuquerque.

"I've been taking product from other producers down in Las Cruces up to Albuquerque for the last year and ... figured I would get through the checkpoint without a hitch like every other time," he said. "But this time, they had dogs on site, and they seem to have triggered on my car."

After he was asked to pull over to the side of the road at the checkpoint on Interstate 25 between Las Cruces and Hatch, Spoor said he disclosed he was carrying legal cannabis in the bins in his car.

"They kind of look at each other and just basically tell me that we're operating in a gray area," he said, adding he was detained in a holding cell for some 3 1/2 hours.

Spoor agreed the proposed reclassification of marijuana is unlikely to stop the seizures. The only change will come from decriminalization or if the Border Patrol "backs off," he said.

"Let states operate with their own jurisdiction without any interference," he said.

The Department of Homeland Security did not return a message seeking comment about the implications of rescheduling marijuana when it comes to border checkpoints in New Mexico.

During a park cleanup event Wednesday in Santa Fe, Lujan Grisham told The New Mexican the proposed change under federal law would "certainly make it easier when we're talking to Homeland Security" about the agency's efforts.

"This is really the step the feds have needed to make," she said, adding she believes "in some small way my pushing on everybody I was talking to got them to move" on the decision.

She said "if there's confusion between Border Patrol or states, we're creating more problems than we are solving. Now maybe they can be part of the regulatory best practices. That would be helpful to the states who have legalized either patient use, so medical, or recreational cannabis."

The governor called the push to reclassify marijuana "really good."

Because most big banks and credit card providers will not work with marijuana businesses, many operate by cash only, and the governor said that also has to change.

"Now they need to pass legislation so it's not an all-cash business," she said. "Let's make the whole business safer."

Frederika McClary Easley, vice president of the Minority Cannabis Business Association, said the proposed rescheduling is a move the industry needs.

"Business owners are in crisis, and this move puts two key things in motion that go towards the reclaiming of some power," she said in statement.

First, she said, it opens the door for more research, "which aids in the work of legitimizing the plant and industry as a whole."

Second, she said, it gets rid of a tax burden on marijuana businesses through Section 280E of the Internal Revenue Service Code.

That section "prohibits businesses from deducting otherwise established business expenses from gross income associated with the 'trafficking' of Schedule I or II substances, as defined by the Controlled Substances Act," according to the Marijuana Policy Project.

"Being released from this clutch will free up cash so that business owners can reinvest in themselves," McClary Easley said. "It will also allow for greater [returns on investment] to be reached, which gives leverage when negotiating deals for capital."

House Speaker Javier Martínez, an Albuquerque Democrat who was a sponsor of the bill that legalized adult-use recreational marijuana in New Mexico, called reclassifying cannabis a huge step toward a more just and commonsense national drug policy.

"I'm proud that New Mexico has been a leader on this issue, with our thriving recreational and medicinal cannabis markets," he said in a statement. "A more pragmatic approach at the federal level would be a boon to this growing industry."

Bringing state and federal guidelines into better alignment "will allow fairer tax policy for New Mexico cannabis businesses and the potential for health insurance coverage for medicinal cannabis," Martínez added.

State Rep. Andrea Romero, D-Santa Fe, also a sponsor of the recreational cannabis bill, said the reclassification indicates the federal government recognizes the medicinal benefits.

Romero said legalization backers are studying the implications the proposed rescheduling would have on New Mexico.

"The concerns are more that we're opening the opportunity for Big Pharma to get involved versus some of our smaller operators," she said. "But I don't want to be disconcerted about the fact that this is massive for the benefit of the medical community and the absolute regard that cannabis should have ... and certainly give it the legitimacy it deserves."

Spoor, the operations manager for Top Crop and Dark Matter, said the transport of state-regulated cannabis through border checkpoints continues.

"They said that I'd be getting a letter in the mail ... on instructions on how to get reimbursement for our losses, but that never came," he said, adding he knows people who have called Border Patrol asking how to get reimbursed. "They basically just laugh in your face and say it's a federal illicit drug so it's going to be destroyed. You're not going to see anything back."

Spoor lauded the governor's efforts to try to resolve the dispute.

"She seems to be on our side, so we're rooting for her," he said.

Follow Daniel J. Chacón on Twitter @danieljchacon.