‘Seize all cannabis’: Inside the surprising federal crackdown on New Mexico weed farmers

Drug cartels and human traffickers aren’t the only people dodging border patrol officers these days in southern New Mexico. The state’s cannabis businesses — which operate legally under state law — are also desperately trying to evade border checkpoints.

That’s because U.S. Customs and Border Protection officers have seized more than $300,000 of state-licensed cannabis in New Mexico in the last two months. These seizures occurred at border patrol checkpoints, some of which lie as far as 80 miles from the U.S.-Mexico border.

The crackdown has created tension between the Biden administration and Democratic Governor Michelle Lujan Grisham — who championed marijuana legalization and touted it as an economic boon for the state. The enforcement actions are occurring as the Justice Department is preparing to loosen federal restrictions on marijuana, which would mark the biggest liberalization of drug policy in more than half a century.

“It doesn't feel like this really has anything to do with what their role is,” said Ben Lewinger, executive director of the New Mexico Cannabis Chamber of Commerce. “They're supposed to detain people entering the country illegally, and then detain narcotics and other dangerous items also entering the country illegally.”

The wave of seizures mark a clear departure from long-standing federal policy, wherein law enforcement officials have largely taken a hands-off approach to enforcement in the 38 states that have legalized medical or recreational cannabis possession in conflict with federal law.

Cannabis growers and producers residing south of the checkpoints are now scrambling to find ways to get their product north. Some have discussed moving their operations north to Albuquerque, the state’s largest city. Others are using tactics to bypass checkpoints that originate in a time when the cannabis world was still entirely off the books. And still others are looking to the skies: considering drone transport for small amounts of product.

In a recent phone conversation with an unnamed senior Biden administration official, Lujan Grisham called Department of Homeland Security Secretary Alejandro Mayorkas’ response to the crackdown “inappropriate.” In audio of the call, which was recorded by a third party and posted on X, the governor also pushed the official — it’s unclear which branch of the federal government they work for — to take action.

“Either you have to adjust it or I have to send you a letter saying you’re persecuting the states, you are not using your discretion, you’re not working with me on immigration,” said Lujan Grisham, whose office confirmed the authenticity of the recording but would not identify the administration official. “And I don’t want to send that letter, but I’m boxed in.”

A spokesperson for Customs and Border Protection acknowledged that some states have legalized marijuana, but told POLITICO that because it remains illegal under federal law, “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.“

Las Cruces is at the intersection of two highways, about an hour north of El Paso, Texas. There are CBP checkpoints along U.S. Route 70 to the east, I-10 to the west and I-25 to the north — according to local companies who’ve been stopped along those routes. At least 15 licensed cannabis producers in the southern part of the state have lost product at CBP checkpoints along these highways, according to data gathered by a coalition of operators in the southern part of the state.

POLITICO was recently given the audio of a discussion between a cannabis business owner and a CBP agent at a stop on U.S. Route 70 — east of Las Cruces.

“We’ve been instructed to seize all cannabis — all illegal products — going in this direction,” the CBP officer can be heard telling Rob Duran, founding partner of Head Space — a cannabis company based in Las Cruces. When Duran repeatedly reminds the officer that cannabis is legal in New Mexico, the officer does not acknowledge state law and brings the conversation back to federal law.

“The fact is that I have a federal job to do,” the officer says. “Marijuana is federally illegal.”

Congress has given CBP powers within a “border zone” that stretches 100 miles inland from the border, all the way around the country. Nine of the nation’s 10 largest cities lie within that border zone, according to Harpers Magazine. Federal law gives CBP officials the power to stop individuals — including American citizens — and search them and seize their belongings without a warrant in that zone.

“This entire border zone thing really has no statutory basis,” said Patrick Eddington, a senior fellow focused on homeland security and civil liberties at libertarian think tank the Cato Institute, which has been joined by the ACLU in opposing the enforcement authority given to federal officials at such checkpoints. “The whole border zone is based essentially on administrative fiat that the federal government has engagement in since the 1950s.”

Cannabis producers south of the checkpoints are hustling to find a solution. In order to keep their businesses rolling, producers are falling back on pre-legalization tactics to ensure the safe delivery of their product. One such strategy involves sending multiple “lead cars” through a checkpoint before the shipment van, to see if the checkpoint is currently stopping vehicles. They also have opted to run deliveries late at night or very early in the morning, when the checkpoints are closed.

“It's nothing super advanced,” Lewinger said. “It's kind of what was happening at the very beginning of the medical days, or even in the illicit days.”

He adds he “wouldn't be surprised if people are maybe paying off officers.”

Businesses have also discussed more extreme options.

When POLITICO first began speaking to industry members late last week, there were plans to push the state government to change regulations in order to allow private pilots to fly cannabis over the checkpoints into northern New Mexico. Part of the impetus for this idea was stories of pilots doing the same in Alaska. However, this plan could run them into hot water with the Federal Aviation Administration.

The U.S. Court of Appeals for the 9th Circuit on April 22 upheld the decision of the FAA to strip an Alaska pilot and cannabis farm owner — James Fejes — of his pilots’ license after he delivered cannabis a handful of times via plane to remote parts of Alaska.

In the petition, Fejes argued that the FAA could not strip his licensed because the federal government can’t regulate purely intrastate commerce. The three-judge panel, however, rejected Fejes’ argument and his petition for reinstatement, determining that Congress regulates all airspace.

Now, Lewinger tells POLITICO, the state is no longer open to changing the rules to permit delivery by plane. The producers’ airborne plans are now limited to drones — which could be used to transport small amounts of cannabis to testing facilities.

Testing is a state licensing requirement, but there are no testing facilities in the Las Cruces area. Companies in the south of the state have to send off small samples — usually about five grams — to testing facilities on the other side of the checkpoints. Even that small amount can be confiscated, and has been on at least one occasion, according to Lewinger.

Lewinger said some companies are having a harder time getting the testing required by state law — which would put companies out of compliance and could potentially harm consumers. But a short drone flight may be able to move the small samples for testing past a checkpoint.

An act of the federal government would be the fastest way to ensure state-licensed cannabis businesses do not experience seizures of regulated cannabis.

The office of Rep. Gabe Vasquez (D-N.M.), a former Las Cruces councilmember, said he requested a briefing with DHS on the issue, and Sen. Martin Heinrich (D-N.M.) questioned the use of federal resources to seize cannabis.

“Stopping the flow of illicit fentanyl into our country should be the Department of Homeland Security’s focus at these checkpoints, not seizing cannabis that’s being transported in compliance with state law,” Heinrich told POLITICO in a statement. “Our resources should be used to maximize residents’ safety, not distract from it.”