[00:00:00] Speaker 05: We will now hear argument in the case of Salas versus United States, our last argued case for the day. [00:00:10] Speaker 00: Good morning, Your Honors. [00:00:11] Speaker 00: May it please the Court? [00:00:12] Speaker 00: I'm Joseph Horry. [00:00:13] Speaker 05: We're not seeing you yet. [00:00:15] Speaker 05: Hold on. [00:00:17] Speaker 05: Okay. [00:00:42] Speaker 05: You're gonna put him up on the screen? [00:00:45] Speaker 05: You're gonna put him up on the screen? [00:00:46] Speaker 05: Okay. [00:00:47] Speaker 05: Okay, very good, thank you. [00:00:49] Speaker 05: Very well. [00:01:31] Speaker 01: Welcome to Zoom. [00:01:33] Speaker 01: Please press pound, then enter your meeting ID followed by the pound sign again. [00:01:38] Speaker 05: As you can tell, we're taking a pause here. [00:01:50] Speaker 01: You are in the meeting now. [00:01:52] Speaker 01: Recording in progress. [00:01:53] Speaker 05: Mr. Hari, can you hear us now? [00:01:59] Speaker 00: Yes, Your Honor, I can. [00:02:01] Speaker 05: Very well. [00:02:01] Speaker 05: Please proceed. [00:02:04] Speaker 00: Good morning, Your Honors. [00:02:05] Speaker 00: May it please the Court? [00:02:06] Speaker 00: This is Joseph Horry. [00:02:07] Speaker 00: I'm representing Appellate Andrew Salas. [00:02:10] Speaker 00: I would reserve five minutes for rebuttal, if I may. [00:02:13] Speaker 05: Very well. [00:02:15] Speaker 00: Your Honors, we contend that Section 12616 of the Agriculture Improvement Act of 2018, which outlawed cockfighting in the territories, does not lawfully apply in the CNMI. [00:02:28] Speaker 00: We've argued that point in our briefs under both of the covenants two application of law sections, sections 105 and 502. [00:02:36] Speaker 00: But since my time is short, I will cut right to the chase, which is the prohibition, even if the prohibition applies prima facie under either or both of those sections, it violates CNMI self-government and is therefore inconsistent with the covenant and invalid. [00:02:52] Speaker 00: The district court employed the wrong standard in holding the contrary. [00:02:56] Speaker 05: Council, let me ask you this. [00:02:58] Speaker 05: Can you hear me? [00:02:59] Speaker 00: Yes, sir. [00:03:00] Speaker 05: I can. [00:03:01] Speaker 05: Do you concede that subsection D of 2156, which exempted Guam from the general ban on cockfighting in the 1970s, applied to Guam at the same time? [00:03:14] Speaker 00: Subsection D? [00:03:15] Speaker 05: Yes. [00:03:15] Speaker 00: Yeah, our issue is not with subsection D, and I wanted to clarify that. [00:03:21] Speaker 05: Subsection A. Before you in, let me, if you concede that, [00:03:26] Speaker 05: Why would you need Subsection D if 2156 doesn't apply to Guam in the first place? [00:03:35] Speaker 00: We believe Subsection 2156D does apply. [00:03:40] Speaker 00: There was some confusion, I think, in the district court's opinion as to what the law was that it was analyzing under Section 502. [00:03:48] Speaker 00: But the relevant law for 502 analysis is 2156A in its 1978 form, which is found in the addendum [00:03:56] Speaker 00: of our reply brief. [00:03:57] Speaker 00: The district court was right that 2156D, which set up the patchwork pattern of cockfight prohibition, applied to Guam and applied generally to the several states. [00:04:09] Speaker 00: But because of that, 2156A did not apply to Guam, did not apply generally to the states with respect to fights between birds. [00:04:18] Speaker 00: And the prohibition of such fights was in 2156A. [00:04:22] Speaker 00: And therefore, neither 2156A [00:04:24] Speaker 00: nor any of its amendments, including this most recent one here in 2018, apply with respect to birds in the CNMI. [00:04:33] Speaker 00: Now, Your Honor, the district court effectively held that an identifiable federal interest alone is sufficient to uphold a federal law against a self-government challenge under the Covenant, and that once such an interest is identified, any CNMI interests against the law's application, however strong, [00:04:54] Speaker 00: no longer matter. [00:04:56] Speaker 00: In this case, for example, the district court assumed that cockfighting is deeply entrenched in the CNMI's internal affairs. [00:05:03] Speaker 00: That's at page 13 of the district court's opinion. [00:05:06] Speaker 00: It accepted as true that cockfighting is a quintessential internal affair of the Northern Mariana Islands. [00:05:12] Speaker 00: That's at page 15, note five. [00:05:15] Speaker 00: So it assumed the CNMI had the strongest possible interest against application of the law, but it still found federal interests to necessarily prevail [00:05:24] Speaker 00: as a matter of law. [00:05:26] Speaker 03: But we only look at the internal affairs if Covenant 103 applies, right? [00:05:36] Speaker 03: And 105. [00:05:36] Speaker 00: Sorry, Covenant 103 applies to the whole Covenant. [00:05:43] Speaker 00: That applies to [00:05:44] Speaker 00: any situation that needs to be reconciled. [00:05:47] Speaker 03: I mean, I guess I'm saying if 502 applies, then the Richards test, which considers internal affairs, is unnecessary. [00:05:54] Speaker 03: You would agree with that? [00:05:56] Speaker 00: No, I wouldn't. [00:05:57] Speaker 00: I think the Richards test is necessary under 502. [00:06:00] Speaker 00: Section 502 states that the following laws of the United States in existence on the effective date of this section, subsequent amendments will apply in the Northern Marianas [00:06:14] Speaker 00: And this is the important, except as otherwise provided in this covenant. [00:06:19] Speaker 00: And that's an important except. [00:06:22] Speaker 00: That means except as provided in 103 in the self-government provision. [00:06:26] Speaker 00: The final report of the Commission on Federal Laws cited in footnote 25 of our opening brief makes that point. [00:06:33] Speaker 00: The most important limitation on the applicability of these laws is section 103 of the covenant. [00:06:39] Speaker 00: So really, either way, [00:06:41] Speaker 00: section 10, whether you operate under 105 or 502, you need to reconcile it with self-government. [00:06:48] Speaker 00: And I think that also comes up in a, yeah. [00:06:51] Speaker 04: I'd like to ask you a question, if I may. [00:06:53] Speaker 04: I know you're deep into your thoughts here, but let me ask you this. [00:07:00] Speaker 04: Taking 502 as it is, let me ask you this. [00:07:03] Speaker 04: How does 105 fit into this? [00:07:07] Speaker 04: Because 105 says the United States may enact legislation. [00:07:13] Speaker 04: Is an amendment that's referred to in 502, does that qualify as legislation under 105? [00:07:24] Speaker 00: Yes, yes it is. [00:07:27] Speaker 00: An amendment by its very nature is legislation. [00:07:31] Speaker 00: So 105 does apply. [00:07:35] Speaker 04: And then what does that get you? [00:07:38] Speaker 00: Well, it's kind of an unusual situation here, where you have an amendment. [00:07:46] Speaker 00: Under our analysis, 105 and 502 both apply in this situation. [00:07:52] Speaker 04: So that's what I'm asking you. [00:07:53] Speaker 04: What do you get if they both apply? [00:07:55] Speaker 04: What does that lead to? [00:07:58] Speaker 00: In this case, it leads to the law being [00:08:01] Speaker 00: inapplicable under either one of those sections. [00:08:03] Speaker 03: But there's no Ninth Circuit case that has ever analyzed federal law under both 105 and 502, right? [00:08:10] Speaker 03: Because 502 only applies if the law was in effect prior to January 9, 1978, which you agree in district court that that's what applied here because the law was in effect at that time, and 105 only applies when the law was promulgated after January 1978. [00:08:31] Speaker 03: So what Ninth Circuit case actually applies both? [00:08:35] Speaker 00: I don't have a Ninth Circuit case applying both, but I do have Ninth Circuit cases applying each one, and each of those does look at consistency with the self-government. [00:08:48] Speaker 03: Most of the cases that have turned out... Right, they either apply one or the other because it depends on when the law was promulgated, right? [00:08:53] Speaker 03: You have to look at the date, correct? [00:08:55] Speaker 03: Right. [00:08:56] Speaker 03: And you would agree that in this case, the relevant law was in effect prior to January 9th of 1978. [00:09:01] Speaker 03: So 502 would apply. [00:09:04] Speaker 03: And that's the position you took in the district court. [00:09:09] Speaker 00: 502 does apply. [00:09:10] Speaker 00: We think section 105 also applies. [00:09:13] Speaker 00: They both apply because the amendment is legislation. [00:09:16] Speaker 00: Therefore, it's under 105 as well. [00:09:18] Speaker 04: Has there ever been a case in the Ninth Circuit or elsewhere that is considered an amendment? [00:09:28] Speaker 00: Yes, actually there is. [00:09:30] Speaker 00: The case we pointed to in our brief was the Saipan-Stevedore case. [00:09:35] Speaker 00: That was an amendment to an earlier statute, the Longshore Workers' Compensation Act, which goes back to 1927, but there were some amendments after that. [00:09:44] Speaker 00: And that analyzed under Covenant Section 502, and it found that [00:09:52] Speaker 00: U.S. [00:09:52] Speaker 00: sovereignty in the CNMI derives its legitimacy, our respect for the unique customs and values that have developed over hundreds of years in the CNMI. [00:10:02] Speaker 00: And the interpretation and application of federal law under Covenant Section 502 must take into account these historical and cultural considerations. [00:10:13] Speaker 00: So there you have a court under 502 also looking at these issues. [00:10:17] Speaker 00: But the district court in this case, by contrast, said, [00:10:20] Speaker 00: uh... the providing more facts about how deeply entrenched cockfighting is in the CNMI would be futile because the federal interest outweighs that anyway. [00:10:28] Speaker 04: Were the amendments in that, in that case you just referenced, were they after the covenant was adopted? [00:10:39] Speaker 00: Um, there were multiple amendments there. [00:10:42] Speaker 00: I can't say for sure if they were after or before the covenant was adopted. [00:10:46] Speaker 00: I don't know the dates on those. [00:10:48] Speaker 04: Let me ask you this, if they both apply, what is the analytical framework under 10105 and 10103, I guess? [00:11:01] Speaker 04: I mean, how do you do the analysis? [00:11:04] Speaker 00: I think you do the same analysis as you would under [00:11:11] Speaker 00: under 105, you do the same, the Richard's balancing test analysis, we believe, is the correct test for the court to apply. [00:11:19] Speaker 04: Well, I'm asking you, apply that balancing test for me. [00:11:23] Speaker 04: I'm asking you, what is the analytical, what goes into that analysis? [00:11:30] Speaker 04: Maybe I should put it that way. [00:11:32] Speaker 00: Okay, the balancing test, you're weighing the federal interest in the legislation at issue. [00:11:38] Speaker 00: against the extent of intrusion into local affairs. [00:11:41] Speaker 00: Now that said, the Richards test does need some further clarity in order to be useful because it doesn't specify how great the interests need to be to outweigh each other. [00:11:51] Speaker 00: It leads to conclusory decisions like the one we have in this case that one outweigh the other with no real explanation of why. [00:11:59] Speaker 00: So we would propose that the court adopt as a clarifying explication of Richards sliding scale. [00:12:07] Speaker 00: or by federal laws that burden core self-government interests receive strict scrutiny. [00:12:12] Speaker 00: And I would define core self-government interests in accordance with the international law principles that govern the trusteeship and that produce the covenant that are cited on pages 24 and 25 to 26 of our opening. [00:12:25] Speaker 00: As the right of the people freely. [00:12:28] Speaker 05: Councilor, what case do you rely upon for the concept that we're supposed to apply strict scrutiny in this situation? [00:12:37] Speaker 00: Well, strict scrutiny, your honor, is for, I think, results from the fundamental nature of the right to self-government, which is fundamental to the government itself. [00:12:47] Speaker 05: OK, you're just speaking in general terms, but there's no case law that you can cite us to that says that we must apply strict scrutiny in our analysis here. [00:12:55] Speaker 05: Is that correct? [00:12:57] Speaker 00: That's correct. [00:12:58] Speaker 00: There are cases applying the balancing test, but I think there is, this is my, [00:13:05] Speaker 00: proposal for the court to adopt this as a clarification of Richards as to what kind of balance we need, what kind of balance is needed, how strong the interest needs to be. [00:13:17] Speaker 04: Well, we know that the case law does signal that the federal interest is pretty strong, correct? [00:13:27] Speaker 00: Well, in this case, it needs to be strong, yes. [00:13:32] Speaker 04: Yes, the federal government has a pretty strong interest here. [00:13:35] Speaker 04: And it's pretty clear that the government has been bound to protect birds and other animals for quite a long period of time. [00:13:46] Speaker 04: I understand the cultural aspects that are concerned here. [00:13:49] Speaker 04: I understand that very well. [00:13:54] Speaker 04: But why wouldn't the federal interest, which is out to protect these animals, [00:14:02] Speaker 04: For a number of reasons, why wouldn't that just prevail here? [00:14:10] Speaker 04: I mean, it's pretty strong. [00:14:11] Speaker 00: Well, for a number of reasons, Your Honor. [00:14:13] Speaker 00: I don't think a strong federal interest has been established here at all. [00:14:17] Speaker 00: The district court mentioned three interests. [00:14:21] Speaker 00: Well, go ahead. [00:14:21] Speaker 00: Two of them, the interest in regulating interstate commerce and protecting, again, avian flu. [00:14:27] Speaker 00: There was no evidence at all, either before the court or before Congress. [00:14:31] Speaker 00: as to either of those. [00:14:33] Speaker 00: In fact, Amicus, I think, said it best, there is very little data available yet on the details of cockfighting in the CNMI. [00:14:40] Speaker 00: So what you have is Congress legislating about something which it has no information about. [00:14:45] Speaker 00: And there's nothing, if we were to apply strict or even intermediate scrutiny to this, anything other than a rational basis, we would have to say Congress just doesn't have the information. [00:14:55] Speaker 04: So I sort of view those comments about strict intermediate scrutiny, rational basis review is just sort of, I don't, that framework doesn't really seem to fit. [00:15:07] Speaker 04: I mean, I understand your concern, but it's, [00:15:11] Speaker 04: The balancing test, you look at what the federal interest is, and I forget what other factors you look at, and you look at what the local interest is. [00:15:18] Speaker 04: And, you know, at least as I read the case law, boy, you better have a really strong local interest that would prevail over the federal interest. [00:15:34] Speaker 00: And I think the district court assumed that we have the strongest local interest in the case, and even on that assumption still applied the federal interest based on conclusions that were not discussed by Congress, no evidence before Congress, only the moral judgment, which is directly contrary to the moral judgment on this point, reached by the CNMI people through their own legislature in the law that we cited [00:16:01] Speaker 00: the 6CMC 3197, the CNMI Animal Protection and Control Act, which makes a contrary moral judgment saying, yes, we prohibit cruelty to animals, but we carve out an exception for cockfighting. [00:16:14] Speaker 00: So why does one of those prevail over the other? [00:16:16] Speaker 00: What's the reasoning? [00:16:18] Speaker 00: Why should just the federal rule prevail simply because it's federal? [00:16:23] Speaker 00: It's not a balancing tape. [00:16:24] Speaker 03: Can we look at the Northern Mariana Islands versus US case? [00:16:28] Speaker 03: In that case, [00:16:30] Speaker 03: the circuit held that if legislation applied to Guam, then an amendment also applied to Guam, even though the actual specific purpose of, or the work that the amendment did didn't actually apply to Guam. [00:16:44] Speaker 03: So in that instance, the amendment was exempting states from the statute of limitations, and the amendment in that case did not exempt Guam from the statute of limitations, but the court still held, as long as the original Quiet Title Act applied to Guam, then any amendments also applied to Guam. [00:17:00] Speaker 03: So why wouldn't that control here? [00:17:01] Speaker 03: Yes, that's right. [00:17:02] Speaker 03: Why wouldn't that control here? [00:17:04] Speaker 00: Well, a couple of reasons. [00:17:06] Speaker 00: One is the original, the Animal Protection Act, the original cockfight prohibition back in 1978 did not apply to law. [00:17:16] Speaker 00: And so because of subsection D, then subsection A, the prohibition did not apply. [00:17:21] Speaker 00: And so it continues to not apply. [00:17:23] Speaker 00: The amendments also do not apply. [00:17:26] Speaker 00: I want to say a word though about that Quiet Title case because there is some language in that case that can cause much mischief if it's taken out of context. [00:17:33] Speaker 00: We can see in the court's opinion also in the government's briefs. [00:17:37] Speaker 00: That was the court's statement that the amendments at issue, regardless of their treatment of Guam, are law within Guam. [00:17:42] Speaker 00: And in order to understand and apply that correctly, we must realize that Guam is used two different ways in the Quiet Title case. [00:17:49] Speaker 00: It can mean Guam is a geographic area, and it can mean Guam is a juridical person, a litigant. [00:17:54] Speaker 00: It means both of those things in that sentence. [00:17:56] Speaker 00: It means that regardless of their treatment of Guam as a juridical person, their law within Guam as a geographic area. [00:18:03] Speaker 00: But that's not what we have here. [00:18:04] Speaker 00: The term state in the statute has no such double meaning. [00:18:07] Speaker 00: It just means state as a geographic area, if the fight is to take place in a state as a geographic area. [00:18:13] Speaker 00: Similarly in the covenant, applicable to Guam means Guam as a geographic area. [00:18:19] Speaker 00: So the quiet title case should not lead [00:18:22] Speaker 00: to this kind of metaphysical sophistry, where a law applies and it does not apply, as the district court and the government misunderstands it. [00:18:31] Speaker 05: We're well over your time. [00:18:32] Speaker 05: Let's hear from the government now. [00:18:34] Speaker 05: Maybe we'll give you a little bit of time for rebuttal, OK? [00:18:37] Speaker 05: So let's hear from Ms. [00:18:39] Speaker 05: Murphy, representing the United States. [00:18:48] Speaker 05: Good morning. [00:18:49] Speaker 02: Good morning. [00:18:52] Speaker 02: May it please the Court and Murphy for the United States. [00:18:57] Speaker 02: Your Honor, the District Court correctly held that under either Section 502A2 or Section 105 of the Covenant, but really under 502A2, because that's the one that applies here, Congress could legitimately extend the ban on cockfighting to every state and territory, including the CNMI, which is exactly what it did. [00:19:21] Speaker 02: The Animal Welfare Act produces like a general prohibition on animal fighting. [00:19:28] Speaker 02: There used to be a conditional prohibition for cock fighting, which as a matter of federal law, looked through to state law. [00:19:36] Speaker 02: But it was a question of fact, not law, whether that condition was satisfied in any state. [00:19:42] Speaker 02: So the statute at all times applied even-handedly to the states and to Guam. [00:19:49] Speaker 02: And so simply by plainly reading Section 50282, the law could be made applicable to the CNMI. [00:19:57] Speaker 02: So just more broadly, since there's some confusion about the roles of Section 105 and Section 502, Article 5 of the Covenant, which includes Section 502, obviously, addressed the law that would become part of the law of the newly formed Commonwealth as it came into being. [00:20:18] Speaker 02: as Your Honor pointed out in the CNMI case versus United States case, this court looked at the language of 502, which provides that the laws following laws of the United States in existence on the effective date and subsequent amendments to such laws. [00:20:37] Speaker 02: And as this court's holding in the 2002 case, it has the effect of keeping the law in the states and the law in the CNMI equal. [00:20:47] Speaker 02: because amendments obviously would apply also to the states. [00:20:51] Speaker 05: Let me ask you this. [00:20:52] Speaker 05: Obviously, 1978 plays a role here. [00:20:54] Speaker 05: How do we determine when a new provision of law, whether that is an, in quotes, subsequent amendment to an older law that predates 1978? [00:21:05] Speaker 05: Does that change our analysis in some way? [00:21:08] Speaker 02: For this particular case, it's really easy. [00:21:13] Speaker 02: If you look at page one of our addendum, the 2018 Act specifically says, you know, Section 26 of the Animal Welfare Act is amended by striking, you know, [00:21:28] Speaker 02: by striking subsection D, by re-designating the subsection. [00:21:32] Speaker 02: So it's very clearly. [00:21:34] Speaker 05: So the 2018 act necessarily refers to the earlier law and so forth. [00:21:36] Speaker 02: Right. [00:21:37] Speaker 02: So Congress just specified what it was and said, we're amending it. [00:21:41] Speaker 02: So that very, very clearly falls within section 502A, just like the CNMI case, which involved an amendment, an amendment to the statute of limitations of the Quiet Title Act case. [00:21:54] Speaker 02: So it's not problematic, generally. [00:21:59] Speaker 04: I don't know which provision it is, but there's some, I think it's 502, there's some language right at the very end of it, I can't remember if it's D or, about except as provided within the covenant, except as otherwise provided within the covenant, correct? [00:22:14] Speaker 04: Where does that come from? [00:22:17] Speaker 02: I'll try and read you, oh here we go, it is at the end of section, except as otherwise provided in the covenant. [00:22:26] Speaker 02: There's a lot of, for example, even within Section 502A itself and Article 5, so Article 5 provides for the applicability of certain constitutional provisions. [00:22:41] Speaker 02: It provides for certain specific statutes, federal services, financial assistance programs. [00:22:48] Speaker 02: So there are other provisions in the covenant that address specific laws. [00:22:53] Speaker 02: So this is more of a catch-all 582 for laws. [00:22:58] Speaker 04: Can that apply back to 105? [00:23:02] Speaker 02: the city on one of five provides serves a different purpose one of five is at the beginning so article five's incorporating law saying what law is applicable in the new commonwealth uh... article one one of five [00:23:17] Speaker 02: defines the political relationship between the Northern Mariana Islands and the United States. [00:23:23] Speaker 02: And you'll recall that the people of the Northern Mariana Islands asked to become United States citizens and have a political union. [00:23:31] Speaker 02: So what 105 says, it addresses with the federal legislative power, and it says the United States may enact legislation in accordance with its constitutional processes, which will be applicable to the Northern Mariana Islands. [00:23:45] Speaker 02: So that just says when Congress enacts a statute, it can enact legislation that's applicable to the Northern Mariana Islands. [00:23:53] Speaker 02: Then it says, if it can't be made applicable to the states as well, then Congress has to really think about it and actually specifically name the Northern Mariana Islands. [00:24:03] Speaker 02: And then at some point, Richard balancing comes in. [00:24:07] Speaker 02: Richard seems to us a very difficult case to read. [00:24:11] Speaker 02: It was a case in which it involved the Insular Areas Act. [00:24:15] Speaker 02: which did in fact specifically address the Northern Mariana Islands. [00:24:20] Speaker 02: It addressed the subpoena directed towards the Mariana Islands, and the governor's argument in that case was that it violated the [00:24:29] Speaker 02: the subpoena violated the second sentence of section five. [00:24:32] Speaker 03: Isn't the federal interest here somewhat weak because the federal government previously said as long as cockfighting is legal in that local jurisdiction, then our federal law will not prohibit it. [00:24:44] Speaker 03: So now we've happened to change the law in 2018, but that seems to indicate the federal interest is not that strong, right? [00:24:52] Speaker 03: If the federal government allowed it for many decades, if not hundreds of years, [00:24:57] Speaker 02: Your Honor, I have to disagree. [00:24:59] Speaker 02: I mean, Congress can change its mind, and this federal interest can be given greater prominence by a new Congress. [00:25:07] Speaker 02: And here, as the District Court pointed out, it's a strong federal interest. [00:25:11] Speaker 02: First of all, it's regulating interstate commerce. [00:25:14] Speaker 02: And Congress was aware, obviously, of other courts and other decisions from other courts involving cockfighting. [00:25:21] Speaker 02: The First Circuit's decision, the Fourth Circuit's decision all established that [00:25:26] Speaker 02: Cockfighting is a big business. [00:25:28] Speaker 02: It's not just the cultural practices, wagering, there's betting, there's online activity. [00:25:36] Speaker 03: But if there's a long history of cockfighting on the island and it's part of the cultural history, then why wouldn't it be an intrusion into the internal affairs of the CNMI to now prohibit it? [00:25:45] Speaker 02: Well, the other thing is it's not an internal affair either, Your Honor, because if you look at the statute, the actual statute that's at issue and being applied here, the statute makes it unlawful for a person to knowingly sponsor or exhibit an animal in an animal fighting venture. [00:26:07] Speaker 02: That's 2156A1. [00:26:10] Speaker 02: And an animal fighting venture is an event in or affecting interstate or foreign commerce involving a fight for sport, wagering, or entertainment. [00:26:21] Speaker 02: So it inherently has a tie to interstate commerce, a tie to things that move in interstate commerce. [00:26:31] Speaker 02: It's not this inherently local thing that's being addressed. [00:26:35] Speaker 02: And the other issues that Congress was trying to address was also the spread of avian flu and Newcastle disease and other diseases that have been shown to be spread through the importation of cockfighting birds. [00:26:51] Speaker 02: And finally, it's completely legitimate for Congress to protect the well-being of animals. [00:26:56] Speaker 02: This isn't just an anti-fighting statute. [00:27:00] Speaker 02: It involves the well-being of animals and stopping people poaching pets and using them for research. [00:27:08] Speaker 02: Congress has a very legitimate interest in that. [00:27:11] Speaker 04: Is it the government's position that the only provision of the covenant that applies here is 502? [00:27:18] Speaker 02: But it is a position that only 502 applies. [00:27:22] Speaker 04: Explain to me again why 105 doesn't apply here. [00:27:27] Speaker 04: In other words, why can't legislation also encompass an amendment? [00:27:31] Speaker 04: I don't understand. [00:27:32] Speaker 04: A legislation is a law. [00:27:35] Speaker 04: An amendment is a law. [00:27:37] Speaker 02: Your Honours, it's just not the way that the Covenant is set up. [00:27:41] Speaker 02: I mean, if your Honours wanted to apply 105 and say it's a law, and going forward they both apply, it's not what this Court did in Richards, certainly not what this Court did in Changda Liu, in which you said you look at, depending on ... [00:27:55] Speaker 02: look at the date of enactment of the original legislation, 502 if it's imported through Article 5 of the Covenant, 105 if you're looking at like post-creation of the Northern Mariana Islands legislation. [00:28:09] Speaker 02: And the only difference really is balancing. [00:28:12] Speaker 02: And as I mentioned, we didn't really brief this out. [00:28:16] Speaker 02: The idea that there's a balancing test in every 105 case seems very problematic. [00:28:22] Speaker 02: given that there's no balancing test in legislation that applies to the states and it's odd to give a territory like almost more rights than a state. [00:28:33] Speaker 02: And also because the plain language of section one and five is the United States may enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands. [00:28:44] Speaker 02: And that seems very consistent with the rest of article one, which is desire for political unity with the United States [00:28:52] Speaker 02: the incorporation of United States law as the sovereign law of the CNMI. [00:28:58] Speaker 02: And in Rich's that was what the court looked to saying that section 103 doesn't require some judicial look in every case. [00:29:06] Speaker 02: It doesn't set aside an area of legislation that Congress can't regulate. [00:29:12] Speaker 04: I appreciate your argument and I well understand your argument with respect to the federal interest here because I was discussing with [00:29:22] Speaker 04: But I want to make sure the analytical framework that we apply here is correct. [00:29:32] Speaker 04: And I don't know that you can just say with a great deal of certainty that only 502 applies and that ends the analysis. [00:29:45] Speaker 04: Maybe that's what our case is saying. [00:29:47] Speaker 04: Maybe that's correct. [00:29:47] Speaker 02: It is what your cases say. [00:29:48] Speaker 02: It's certainly what the CNMI v. U.S. [00:29:51] Speaker 02: case says. [00:29:52] Speaker 02: That's at 279 after 1070. [00:29:55] Speaker 02: And it kind of ends up with more or less the same net result, because under that case, this court said that you look at an amendment, it becomes part of the underlying law, so then you look back towards that law applicable to Guam and to the states even-handedly. [00:30:13] Speaker 02: So as I say before, that decision has the effect of making sure that in the states and in the CNMI, when laws are amended, it has the same effect everywhere. [00:30:27] Speaker 02: It becomes part of the original law. [00:30:30] Speaker 04: Well, I guess the underlying my concern is, you know, there is, in the Covenant, there is some attempt to preserve the cultural aspects [00:30:43] Speaker 04: No, that's right, but if you look at... Of the life that, you know, exists there in the Northern Mariana Islands? [00:30:50] Speaker 02: Well, I'm not sure that that's exactly true, Your Honor, because if you look at Article 1, as I say, they want to come into political union. [00:30:58] Speaker 02: Well, at least for some self-government. [00:31:00] Speaker 02: Right, but 103 says, this is what the text is, the people of the Northern Mariana Islands will have the right of local self-government and will govern themselves with respect to eternal infairs. [00:31:13] Speaker 02: So we don't actually know exactly what that means. [00:31:17] Speaker 02: As I explained earlier, the cockfighting ban is not internal. [00:31:22] Speaker 02: It has to do with exhibiting animals and show ventures, which is a strong hook to interstate commerce, not just a purely internal cultural thing. [00:31:31] Speaker 04: Before the internet and everything else and all this fancy gambling that takes place, was cockfighting pretty culturally ingrained in [00:31:40] Speaker 04: society's there in the Northern Mariana Islands? [00:31:43] Speaker 02: Yeah, and the district court assumed in granting the government's motion to dismiss it, that was true. [00:31:51] Speaker 04: But what the court... Does the government dispute that? [00:31:56] Speaker 02: At this point, we're on a 12b6, Your Honor, and we accept it as true. [00:32:00] Speaker 02: And I don't see any reason why we would [00:32:02] Speaker 02: need to take a position one way or another because just as a legal matter, as the court said, whether you look at it through a 502 lens or a 105 lens, [00:32:14] Speaker 02: it still legitimately becomes part of the law of the Central North Mariana Islands because there's a strong federal interest. [00:32:23] Speaker 02: And as I say, it's not a, you know, the political union was the request of both parties. [00:32:29] Speaker 02: It's not a question of somebody coming and, you know, bullying its law onto an unwilling people. [00:32:40] Speaker 02: If you're honest, have no further questions. [00:32:41] Speaker 05: Another question? [00:32:42] Speaker 05: No, thank you. [00:32:43] Speaker 05: I think not. [00:32:44] Speaker 05: All right, Mr. Horan, we'll give you two minutes of rebuttal. [00:32:49] Speaker 00: Thank you, Your Honor. [00:32:50] Speaker 00: Just as to the issue that came up a couple of times in Council's argument as to whether it's 105 or 502 and how those interrelate, one thing that bears consideration on that point is that those two sections came into effect at different times. [00:33:09] Speaker 00: Section 105 came into effect as soon as the covenant was [00:33:13] Speaker 00: adopted and approved in 1976, and Section 502 did not come into effect until 1978. [00:33:21] Speaker 00: Now, the law at issue here, the cockfight prohibition, was enacted in 1976, shortly after the Covenant was adopted, only a couple of months after, but during the time when 105 had come into effect. [00:33:34] Speaker 00: So when it was first enacted, the only section that could apply to it was 105. [00:33:38] Speaker 00: 105 applied [00:33:40] Speaker 00: at the outset and then later on in seventy eight when you reach January ninth uh... then uh... five oh two came into effect as well so originally it was it was a one oh five case but in district court you agreed that section five oh two governed correct? [00:33:55] Speaker 03: in district court you didn't raise that one oh five governed in district court in the court below correct? [00:34:03] Speaker 00: I did raise that in district court there was uh... I think if you uh... [00:34:09] Speaker 00: I agree that 502 governs, but I would say 502 also governs. [00:34:14] Speaker 00: I don't think you have to choose and say one or the other. [00:34:16] Speaker 00: It's a necessary dichotomy. [00:34:18] Speaker 00: In this case, it's not. [00:34:21] Speaker 00: The other point that council made, and this came up a couple of times, was the connection to commerce. [00:34:27] Speaker 00: And I think she characterized it as big business, cockpiting as big business. [00:34:31] Speaker 00: Is it? [00:34:32] Speaker 00: Is it a big business? [00:34:33] Speaker 00: There's no indication of that at all in the record. [00:34:36] Speaker 00: No evidence of that. [00:34:37] Speaker 00: There's nothing in the legislative [00:34:39] Speaker 00: history about that that's that's purely speculation and argument by the government there's no record support for that maybe it is maybe it's not but we never had we never had the hearing there was never the evidence there was never the [00:34:53] Speaker 00: you know, putting things in the respective baskets to weigh the interests. [00:34:57] Speaker 00: Very well. [00:34:57] Speaker 05: I think that there's a... Mr. Horry, would you give me some extra time? [00:35:00] Speaker 05: I'm sure you would have lots more to tell us, but we're going to thank you for your argument. [00:35:04] Speaker 05: Thank both counsel for your argument. [00:35:06] Speaker 05: The case just argued is submitted and the court stands adjourned for the day.