CONCORD, N.H. — Mario Oliveira, co-founder of the Violently Injured Police Officers Organization (V.I.P.O.), testified last week before a committee of the New Hampshire House of Representatives in support of V.I.P.O.’s model bill to increase benefits for first responders who are seriously injured but not killed in the line of duty. 

New Hampshire’s cannabis legalization effort has reached a tricky crossroads.

A year after Gov. Chris Sununu announced he would support a legalization approach that meets a number of strict conditions, the New Hampshire House has passed a bill. That bill, which cleared the House 239-136 last week, is now in the hands of the Senate.

But the governor has already raised issues with the bill, arguing that it does not follow his vision of establishing retail cannabis outlets that are state controlled.

Now, House Bill 1633 is in front of the Senate Judiciary Committee, and senators, House members, cannabis advocates, and representatives of the governor’s office are working to find a compromise that might please all sides, and not fall afoul of federal laws.

Here’s the latest on the state of cannabis legalization.

Sununu’s position

After years of wavering between skepticism and outright opposition to cannabis legalization in New Hampshire, Sununu surprised many in May 2023 when he released a statement saying he would sign a legalization bill if it met certain criteria.

In order to win Sununu’s support, the bill would need to include a retail model that allowed legal sales only at specific outlets overseen by the state, the governor stated. That approach would include measures to keep cannabis outlets away from schools; prohibit “marijuana miles,” or areas where cannabis stores are concentrated; allow towns to decide whether to permit a cannabis outlet; and provide state control over marketing, messaging, distribution, and access.

Some legalization advocates have opposed that approach, seeing it as unnecessary interference with the free market that would keep costs high.

What has the House done?

The House has passed a number of versions of the cannabis legalization bill this term, as lawmakers quarrel over how closely to adhere to Sununu’s vision.

The legislation that left the House last week, HB 1633, would allow the state to license up to 15 retail establishments. The 43-page bill would legalize the use and purchase of cannabis for anyone 21 or older, and create a commission to license and regulate retail outlets.

Sununu’s issue arises from how those outlets would be managed by the state. The House has adopted a licensing model. The governor prefers a franchise model, which would allow the state to dictate the marketing, layout, and appearance of the cannabis outlets, similar to how fast-food companies allow people to open franchises but require that stores follow brand guidelines.

“The state would essentially be an operational partner, like McDonald’s to a McDonald’s franchise,” said Karen O’Keefe, director of state policies for the Marijuana Policy Project, an advocacy organization.

To Sununu, the retail license model doesn’t give the state sufficient control over sales.

“Governor Sununu has been crystal clear about the framework needed for a legalization bill to earn his support, focusing on harm reduction and keeping it out of kids’ hands,” the governor’s office said in a statement last week. “The legislation passed today doesn’t get us there but the Governor looks forward to working with the Senate to see if we can get it done.”

Why did the House deviate from Sununu’s position?

To some House lawmakers and cannabis legalization advocates, the question of whether to adopt a franchise or license model is not academic: It could have real legal implications for the state.

“Here we are in the world of cannabis, where everything is changing federally under our feet as we try to legalize it here in New Hampshire,” said Tim Egan, an advocate representing the New Hampshire Cannabis Association.

The U.S. Federal Trade Commission has regulatory power over franchised businesses, and requires a certain level of disclosure by companies that are selling franchise rights to others in order to prevent unfair practices.

While 24 states have legalized cannabis, New Hampshire’s state-run retail system would be a first in the U.S. That lack of precedent has made some legalization supporters concerned that a franchise model could allow the FTC to step in and shut down the state-run stores, given that cannabis is still illegal under federal law. Concerns over state liability have pushed some to argue that the licensee model is better.

“Early on, people that knew something about franchise law said, ‘Just don’t do this; you can’t do this,’” said John Reagan, a former Republican state senator from Deerfield who now lobbies in favor of legalization. “You’ll be in a paralyzed situation, and won’t be able to get anything done.”

Others have raised concerns about how close the franchise model could put the state to the cannabis sales themselves. That could raise the possibility for lawsuits, O’Keefe said. The state could potentially face a lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO), under the premise that it is engaged in sales of an illegal drug. Or it could face litigation over the “impossibility pre-emption,” the doctrine that prevents an employee from needing to follow both a state law and a federal law if the two conflict.

Meanwhile, many states that have legalized have already faced difficulty navigating how to collect revenue from retail sales without falling afoul of banking regulations. New Hampshire’s franchise model could invite similar headaches, Egan said.

What’s next for the bill?

HB 1633 has arrived at the Senate Judiciary Committee, which is holding a hearing on April 25. But even before the committee takes it up publicly, stakeholders and senators are already meeting to attempt to finesse the bill to Sununu’s liking.

To be successful, senators will need to thread a needle: Tweak the House bill just enough to win the governor over, but not so much that it transforms the state model and loses support in the House. If the Senate passes a bill that the House does not immediately accept, it could go to a committee of conference, which advocates worry could doom its chances.

Amid those stakes, a potential compromise to the bill has emerged, Egan and O’Keefe say. The proposal would create the franchise model the governor asked for, but include a trigger clause that would implement the licensee approach should the franchise approach be struck down in court. That could allow the state to carry on retail sales even if the federal government intervened.

“I think that would be a great way to bridge the gap,” O’Keefe said. “If (the governor) thinks the franchise model is going to work, then if it works, it works. But if it doesn’t work, then you can address the House’s concerns there.”

For now, discussions are ongoing with Sens. Daryl Abbas, Becky Whitley, Cindy Rosenwald, Tim Lang, and Rep. Erica Layon, according to Egan.

Legalization supporters have attempted a variety of legislative models over the past decade, only to see them struck down by the Senate. But for advocates, with Sununu declining to run for reelection, legalization could be now or never.

“If the goal is to get it done, this is the window,” said O’Keefe. “There is no guarantee that next year there will be a governor that will sign any bill.”

This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NH Business Review and other outlets to republish its reporting. 

New Hampshire National Guard Lt. Ryan Camp looked through the border fence separating Texas and Mexico, and made a mental note of the pickup truck crawling back and forth along the bank of the Rio Grande. He logged the man fishing and the person he could hear but not see walking through the brush below the fence.

Camp’s list of events can grow long by the end of a 10-hour shift. 

That’s the kind of vigilance, he said, that left his unit prepared to spot a group of migrants crossing the river in darkness Wednesday night. Soldiers intercepted the foursome after they cut the fence and slipped under.

“You have to pay attention and be observant of what’s happening not only in front of you at the anti-climb barrier, but what’s happening in the river, and what’s happening on the opposite bank,” Camp said during a patrol last week. “Every encounter we have on the border is different, and we have to adapt every night to every scenario.”

Gov. Chris Sununu deployed 15 National Guard soldiers to Eagle Pass, Texas, in early April to help that state stop undocumented migrants and drugs from coming into the country illegally. The New Hampshire soldiers pair with Guard members from Texas and Louisiana, patrolling 1½ miles of Texas’s 1,250-mile border overnight. Camp said they encounter about 50 migrants a night on average, a huge drop from the 5,000 who were arriving in December. 

Their orders allow them to do three things: report suspicious or illegal activity to Texas authorities; direct migrants to a legal port of entry; and aid migrants only amid danger to their “life, limb, or eyes.” 

They cannot arrest or detain migrants. They cannot even give them water.

Pfc. Dennis Harris, 42, of Freedom, was keeping watch from atop a Humvee last week.

“It’s more of a safety aspect both for the people that are trying to cross and for the people that are here in the States,” he said. “Because, yes, some people that are crossing are obviously family members but there’s also other individuals who are crossing that we probably don’t want living next door.”

Logistically and emotionally challenging

The soldiers’ mission, which will keep them in Texas until early June, is likely more logistically and emotionally complicated than it looks from afar. It can be frustrating, they said, to watch a situation unfold and be so limited in responding. 

That includes waiting for a person to cut or climb over a fence before calling in Texas authorities and saying no to someone asking for water. 

Some migrants ask the soldiers to admit them because they fear for their safety at home. Some appear with young children. They risk drowning in the Rio Grande to get that far. Some spend hours looking for a spot out of the soldiers’ sight to cut the fence and slip under. Last week a woman and two men slept two nights against the fence, asking the soldiers to let them in. Camp, who like the other New Hampshire soldiers does not speak Spanish, used Google Translate to communicate with them. 

“She was saying that she would rather be imprisoned here than in Mexico and that Mexico was dangerous,” Camp, 26, of Brookfield, said. 

Camp recounted a man approaching the fence carrying a toddler in his backpack, through coils of wire with sharp barbs that can quickly shred a pack. 

Last week, a group of migrants found an opportunity to climb over the fence unnoticed and cleared a second fence about 200 yards away. To protect themselves against the sharp wire, they drape it with clothes or blankets. Sometimes they light the material on fire to melt the wire.

When troops noticed the migrants fleeing, Sgt. Timothy King, 26, of Fremont, said they responded the only way their orders allow them to: call authorities who have the power to take migrants into custody – if they find them.

“I’ve seen instances where (migrants) will sit in the brush for probably up to nine or 10 hours,” King said. “They are determined. They will just go out there and just take a nap and … wait until the search gets called off and they can get through.”

Soldiers from other states have seen individuals leave infants at the fence and return to Mexico, waiting to see if the authorities take the child into the United States. If they don’t, they swim across the river again and collect the child.

Guard members from another state saw a woman give birth at the fence. In that case, soldiers responded because the life of the mother and child were at risk. 

“You do everything you can to make sure that if something goes wrong, you can save them,” Camp said. “But until then you have to do your job.”

He said those experiences take a toll on soldiers. The unit was given resources for mental health treatment when they arrived. Camp and another troop leader, Sgt. 1st Class Cameron Holt-Corti of North Berwick, Maine, watch their soldiers for signs they are struggling and help them seek treatment.

“Our job is simple to describe, but there is nothing simple about it,” Camp said.

According to media reports last year, U.S. Customs and Border Protection said 14 of its agents had died by suicide in 2022, the highest count in a single year since it began tracking suicides in 2007.

There are no days off

At the start of his 7 p.m. shift, Holt-Corti, 34, stepped aside, his cell phone to his ear. He was wishing his three children goodnight. 

“You miss them, and it’s rough on them,” he said. “I’ve talked to them every day.”

Each of the 15 Guard members, whose ages range from 19 to 42, left something behind when they volunteered for this mission.

Harris, who also has children, works in construction. Holt-Corti is the director of safety at a welding company. Camp works at Sig Sauer’s testing range and looks after his parents. One soldier is trying to keep up with college courses. 

“You have to make sure that you’re talking with your work, you’re talking to your professors,” Camp said. “One of the things that can be hard for people is the world doesn’t stop while you’re gone. So you’ll come back and things are different. And you end up playing catch up.”

They are staying an hour from Eagle Pass, in Base Camp Alpha, in Del Rio, a commute that stretches their 10-hour shift to 12 hours. They’ve got a gym and a chow hall that serves a lot of shrimp. They cannot have alcohol on or off duty. Some have to get around in a minivan because the car rental agency had nothing else.

Soldiers work three nights, followed by three days off. But “off” is a misnomer because they use those days to keep their service pistol in working order and keep up with training. 

“That’s the Army as a whole,” Camp said. “When you have a day off, in reality, you don’t really have a day off. You have a calmer day.”