Cockfighting fans fight Northern Mariana ban at Ninth Circuit

While cockfighting was banned in the territory in 2018, a proponent says federal regulations should not have outweighed local and cultural interest.

by Candace Cheung, Court House News, February 12, 2024

HONOLULU (CN) — The covenant that established the Commonwealth of the Northern Mariana Islands as a territory of the United States is the only document that governs the legality of cockfighting on the islands, a proponent of the practice told a Ninth Circuit panel Monday.

Andrew Salas, at one time a House representative for the commonwealth, called cockfighting an important cultural and political activity throughout the islands that had been wrongfully prohibited by the Agriculture Improvement Act — signed into law by President Donald Trump in 2018 — and goes against the covenant that allows the territory a unique level of self-governance.

The act banned all forms of animal fighting throughout the 50 states and its territories. As cockfighting had already been outlawed in all states by 2008, Salas said the act targeted the territories.

A federal judge dismissed the case in November 2022, finding federal interests in animal welfare and interstate commerce outweighed intrusion on the commonwealth's internal affairs.

The three-judge Ninth Circuit panel considered which sections of the commonwealth’s covenant, first adopted in 1978 with sections added in later years, should determine the Northern Mariana Islands' level of self-governance as applied to the cockfighting prohibition.

Salas’ attorney, Joseph Horey of Saipan-based firm O'Connor Berman Horey & Banes, said Monday that the act should continue to not apply to the commonwealth, as an initial ban on the practice did not apply in the early days of the territory and as the ban did not apply to individual states until they outlawed it.

The commonwealth, which has a governing structure closer to that of the 50 states rather than its fellow territories, he argued, should not have its internal affairs taken over by the federal interests.

U.S. Circuit Judge Richard A. Paez asked Horey about the balance between federal and local interests.

“I understand the cultural aspects at concern here,” the Bill Clinton appointee said. “The federal interests to protect these animals, why wouldn’t that just prevail here, it’s pretty strong.”

Horey argued the federal interest may not be strong at all, arguing there isn't data suggesting an outsized harm to birds being used for fighting in the Northern Mariana Islands and pointing to a covenant against animal cruelty carving out a specific exception out for cockfighting.

“Why does one prevail over the other? Why does the federal prevail just because it’s federal?” he said.

Attorney Anne Murphy, representing the government, said that the U.S. overrides the commonwealth’s interest in its internal affairs, and that the practice of cockfighting has an “inherent tie” to interstate commerce, due to the transport of the birds and the gambling that inevitably follows, resulting in greater federal interest.

Taking an opposite stance to Paez, U.S. Circuit Judge Lucy H. Koh, a Joe Biden appointee, asked if the government indeed had a weaker interest.

“The federal government previously said as long as cockfighting is legal in that local jurisdiction, then our federal law will not prohibit. So now we change our law in 2018, but now our federal interest is not that strong, if the federal government allowed it for decades, if not hundreds of years,” she said.

Murphy highlighted the interest in regulating interstate commerce, and saying it isnt intruding on internal affairs.

"Cockfighting is a big business, not just a cultural practice, there's wagering, there's betting there's online activity,“ Murphy said. “Its not an internal affair either, it inherently has a tie to interstate commerce, it's not an inherently local thing.”

Horey said the government’s comments on the business side of cockfighting was speculative and that nothing had been established yet on the financial aspect.

The panel, rounded out by George W. Bush appointee U.S. Circuit Judge Milan D. Smith Jr., did not indicate when or how it would rule.