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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	May 8, 2009
NO. 28,388
NEW MEXICO GAMEFOWL ASSOCIATION,
INC.; CHARLES KENT BULLOCK, d/b/a
BULLOCK’S FEED; DON SPEARMAN, d/b/a
DD ANIMAL NUTRITION AND SUPPLY; TONY
T. ORTEGA, d/b/a MESSILLA VALLEY FEEDS;
JOHNNY UNIAS MONTOYA, d/b/a JOHNNY’S
SERVICE STATION; RAUL TREVINO, d/b/a
LEWALLEN SUPPLY; and PRADIP D. BHAKTA,
d/b/a HILLTOP INN,
Plaintiffs-Appellants,
v.
STATE OF NEW MEXICO ex rel. GARY KING;
FARON SEGOTTA; THE HONORABLE BILL
RICHARDSON; DOES 1-40,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
William A. McBee, District Judge
Fitch & Tausch, LLC
Thomas G. Fitch
Socorro, NM

Mark L. Pollot
Boise, ID
for Appellants
Gary K. King, Attorney General
David K. Thomson, Assistant Attorney General
Eric R. Miller, Assistant Attorney General
Scott Fuqua, Assistant Attorney General
Santa Fe, NM
for Appellees

OPINION
CASTILLO, Judge.
{1} 	This matter comes before the Court on Plaintiffs’ constitutional challenges to
the New Mexico cockfighting ban dictated by NMSA 1978, Sections 30-18-1 and -9
(2007). 	The district court dismissed the complaint based on Plaintiffs’ lack of
standing and the determination that the challenged statutes were constitutional.
Although we hold that the district court erred with respect to its ruling on associational
standing, we agree with the district court that the statutes are constitutional, and we
therefore affirm.
I. 	BACKGROUND
{2} 	In 2007, our Legislature amended Sections 30-18-1 and -9 in order to
effectively ban cockfighting in the state of New Mexico. The amendment to Section
30-18-1 eliminated Subsection K, which had excepted cockfighting from the general
prohibition on cruelty to animals. 	The amendment to Section 30-18-9 created a
criminal penalty for persons involved with cockfighting. Plaintiffs, who are the New
Mexico Gamefowl Association, Inc. (NMGA) and a number of business owners, filed
a complaint in district court against the State of New Mexico, the Governor, the
Attorney General, the head of the State Police Department, and forty unnamed
individuals (collectively Defendants). 	The complaint disputes the procedural

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propriety of the passage of the statutes and the constitutionality of Sections 30-18-1
and -9 under Article II, Section 5 of the New Mexico Constitution.
{3} 	Defendants responded with a motion to dismiss, in which they made four
arguments: (1) Plaintiffs have no standing to challenge the cockfighting ban, (2) the
courts do not review the Legislature’s adherence to procedures that are required by the
New Mexico Constitution for the enactment of bills, (3) the challenged procedures do
not apply to the enactment of Sections 30-18-1 and -9, and (4) the New Mexico
Constitution does not protect cockfighting. After a hearing, the district court granted
Defendants’ motion, concluding that Plaintiffs lacked standing and that the statutes
were constitutional. Plaintiffs appeal the order.
II. 	DISCUSSION
{4} 	Plaintiffs urge reversal on three grounds and argue that (1) Sections 30-18-1
and -9 are void because the Legislature did not follow the procedures for the passage
of laws dictated by Article IV, Section 15 of the New Mexico Constitution, (2)
Plaintiffs have standing to challenge the constitutionality of Sections 30-18-1 and -9,
and (3) Sections 30-18-1 and -9 violate substantive protections of Article II, Section
5 of the New Mexico Constitution. We address each argument in turn.
A. 	New Mexico Constitution Article IV, Section 15
{5} 	Article IV, Section 15 of the New Mexico Constitution requires that

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[n]o bill, except bills to provide for the public peace, health and safety,
and the codification or revision of the laws, shall become a law unless it
has been printed, and read three different times in each house, not more
than two of which readings shall be on the same day, and the third of
which shall be in full.
Plaintiffs allege in their complaint that the Legislature failed to follow the required
constitutional procedure and that, as a result, Sections 30-18-1 and -9 are void. For
the purposes of reviewing the district court’s dismissal of Plaintiff’s allegations, we
treat all facts alleged in the complaint as if they were true. Prot. & Advocacy Sys. v.
City of Albuquerque, 2008-NMCA-149, ¶ 17, 145 N.M. 156, 195 P.3d 1. In response
to Plaintiffs’ argument, Defendants counter that courts will not look behind an enacted
law in order to ensure that the Legislature complied with the reading rule. We agree
with Defendants.
{6} In Kelley v. Marron, our Supreme Court considered an argument identical to
that of Plaintiffs. 21 N.M. 239, 241, 153 P. 262, 262 (1915). A litigant challenged
certain legislative acts and asserted that the acts were “not legally enacted.” Id. The
Kelley Court began by considering separation of powers principles, id. at 243-46, 153
P. at 263-64, and concluded that “[t]he only interpretation which is consistent with the
equality and independence of the three departments of government is that such
constitutional provisions are directed to them severally, and that upon the department
to which the provision is directed rests the responsibility and duty of interpreting and

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complying therewith.” Id. at 245, 153 P. at 264. The Court was also concerned with
the clarity and the certainty of the law:
An act of the Legislature, when regularly on file in the office of the
secretary of state, is, and must necessarily be, either a law or not a law,
and it is preposterous to hold that that which is the law is so only prima
facie, or to hold that that which is in fact not a law is even prima facie so.
What constitutes the statutory law of a state must necessarily be an
absolute proposition, and not simply a prima facie one.
Id. at 250, 153 P. at 266 (internal quotation marks and citation omitted). 	After an
extensive review of the law in other jurisdictions, id. at 247-64, 153 P. at 264-71, the
Court held that the complaint, which challenged the validity of the law, was properly
dismissed. 	Id. at 241, 264, 153 P. at 262, 271. Our Supreme Court acknowledged
Kelley’s holding in State ex rel. Clancy v. Hall stating, “courts cannot go behind an
enrolled and engrossed bill, properly authenticated, found in the office of the secretary
of state as a part of the records of that office.” 23 N.M. 422, 431-32, 168 P. 715, 718
(1917); see State ex rel. Wood v. King, 93 N.M. 715, 719, 605 P.2d 223, 227 (1979)
(“[A]n enrolled and engrossed copy, properly signed and authenticated, approved by
the Governor and deposited with the Secretary of State, is conclusive as to the
regularity of its enactment and the courts may not look behind it to the journals to
determine whether constitutional requirements have been met.”).
{7} 	Plaintiffs posit three arguments in order to support their position that Kelley and
its progeny should be reexamined: (1) Legislators commonly do not read bills and are

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not aware of the actual language; (2) Kelley does not account for “vast changes in
circumstances, judicial experience, and trends in law”; and (3) a conclusive
presumption of regularity violates due process protections. With regard to Plaintiffs’
first concern, Kelley stated that “[t]he people are as well able to choose honest and
capable lawmakers as they are to choose upright and righteous judges.” 21 N.M. at
245, 153 P. at 264. 	Although Plaintiffs argue that a lack of judicial review will
effectively write the requirements out of the constitution, Kelley explained that
constitutional mandates are allotted to each of the three branches of government. Id.
at 243-44, 153 P. at 263. Those
mandates thus given must be held to be directed only to the officers
exercising the powers conferred, upon whom rests the responsibility of
seeing that their acts comply with such requirements, unless some one
of the departments of government has been created with superior powers
and prerogatives and given a supervisory control over the other
supposedly equal and independent departments of government.
Id. Thus, each branch bears the responsibility for its own procedures. And the public
is not without remedy because “[i]f . . . members of the [Legislature] violate their
constitutional duties on adjournment, they can be defeated the next time such offices
come up for election, but the remedy is not for the courts.” 	1 Norman J. Singer,
Statutes and Statutory Construction § 15:3, at 822 (6th ed. 2002).
{8} 	In their second argument, Plaintiffs contend that the law has evolved since
Kelley and that the “conclusive presumption of the regularity of acts by government

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officials has given way to the wide-spread use of rebuttable presumptions of
regularity.” Plaintiffs argue that it is “illogical” and “nonsensical” to continue to
apply Kelley’s conclusive presumption. Despite these arguments, “[a] substantial
number of states follow the conclusive presumption rule.” 1 Singer, supra, § 15:3, at
823. But see Ittai Bar-Siman-Tov, Legislative Supremacy in the United States?:
Rethinking the “Enrolled Bill” Doctrine, 97 Geo. L.J. 323, 340 (2009) (“Today, only
a minority of state courts still follow [the enrolled bill doctrine] while most have
modified or completely rejected this doctrine.”). Thus, we disagree that the
conclusive presumption outlined by Kelley is as outdated as Plaintiffs appear to argue.
While we acknowledge that different states may have different approaches to this
question, Plaintiffs fail to explain why the procedures of other states should cause
New Mexico to deviate from its present system.
{9} Finally, Plaintiffs challenge Kelley on due process grounds. Based on the
statement in the brief in chief, “[w]here a presumption intrudes upon a significant
liberty interest it may violate due process of law,” Plaintiffs appear to argue that the
application of Kelley and the conclusive presumption of regularity violate procedural
due process protections. In order to establish a violation of due process, Plaintiffs
must show that (1) they have a protected liberty interest, and (2) the State failed to
provide the minimum procedures necessary to protect the liberty interest. See

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Cordova v. LeMaster, 2004-NMSC-026, ¶ 17, 136 N.M. 217, 96 P.3d 778. Although
it is unclear whether Plaintiffs argue that the application of Kelley violates federal or
state due process protections, we conclude that neither affords Plaintiffs a liberty
interest in judicial review of the reading rule.
{10} Plaintiffs’ liberty interest appears to be rooted in a right of judicial review of
the enactment procedures outlined by the New Mexico Constitution. Plaintiffs do not
explain or provide citation for the proposition that such judicial review is a
constitutionally protected right. Further, the Supreme Court of the United States has
long adhered to the conclusive presumption of regularity in the enactment of laws.
See Marshall Field & Co. v. Clark, 143 U.S. 649, 672-73 (1892). We therefore
conclude that Plaintiffs have asserted no protected liberty interest that is entitled to
due process protection.
{11} Accordingly, we decline to abandon Kelley and the long-standing application
of the conclusive presumption of regularity and, on these grounds, we affirm the
constitutionality of Sections 30-18-1 and -9. State v. Duarte, 2004-NMCA-117, ¶ 11,
136 N.M. 404, 98 P.3d 1054 (recognizing that the Court of Appeals is “limited in [its]
ability to overrule precedent of our Supreme Court”). Because we conclude that
Kelley forecloses judicial review of the Legislature’s enactment procedure, we do not
address whether any of the constitutional exceptions to Article IV, Section 15 of the

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New Mexico Constitution apply to this case.
B. 	Standing
{12} 	“Whether a party has standing to bring a claim is a question of law which we
review de novo.” Prot. & Advocacy Sys., 2008-NMCA-149, ¶ 17. “For purposes of
ruling on a motion to dismiss for want of standing, both the trial and reviewing courts
must accept as true all material allegations of the complaint, and must construe the
complaint in favor of the complaining party.” 	Id. (internal quotation marks and
citation omitted).
{13} 	In order to establish standing, a plaintiff must demonstrate “the existence of (1)
an injury in fact, (2) a causal relationship between the injury and the challenged
conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.”
Id. ¶ 18 (internal quotation marks and citation omitted). Although New Mexico courts
do not require a plaintiff to establish standing as a constitutional threshold, “as a
matter of judicial policy if not of jurisdictional necessity, our courts have generally
required that a litigant demonstrate injury in fact, causation, and redressability to
invoke the court’s authority to decide the merits of a case.” ACLU of N.M. v. City of
Albuquerque (ACLU II), 2008-NMSC-045, ¶ 10, 144 N.M. 471, 188 P.3d 1222. To
that end, “our state courts have long been guided by the traditional federal standing
analysis.” Id.

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{14} Whether a plaintiff has standing depends on “whether the constitutional or
statutory provision on which the claim rests properly can be understood as granting
persons in the plaintiff’s position a right to judicial relief.” Warth v. Seldin, 422 U.S.
490, 500 (1975). Plaintiffs in the present case include NMGA, which is an association
of bird fanciers, as well as Individual Plaintiffs, a group that includes all of the
business owners—feed and animal supply providers, a service station owner, and a
hotelier. We first address the standing of Individual Plaintiffs and then turn to the
standing of NMGA as an association.
1. Individual Plaintiffs
{15} We begin our analysis of Individual Plaintiffs’ standing to challenge the
substantive constitutionality of Sections 30-18-1 and -9 by considering the nature of
the injuries alleged. The complaint states that Sections 30-18-1 and -9 violate “the
constitutionally protected rights of persons in the State of New Mexico to acquire,
possess, and use property for the purposes of cockfighting.” The language of Section
30-18-9 explains the extent of the Legislature’s prohibition on cockfighting. The
statute prohibits persons from causing, sponsoring, arranging, holding, or participating
in a fight between cocks for the purpose of monetary gain or entertainment. Section
30-18-9(A). “Participation” is defined as “owning or equipping [a] participating
[cock] with knowledge of the contest.” Section 30-18-9(A)(2). Further, “[i]t is

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unlawful to train, equip or sponsor a dog or cock for the purpose of having it . . . fight
with another dog or cock, respectively, for monetary gain or entertainment.” Section
30-18-9(B).
{16} Turning to Individual Plaintiffs’ alleged injuries, we first observe that Section
30-18-9(D) criminalizes cockfighting and imposes a series of graduated punishments
based on the defendant’s number of previous convictions. It is well established that
“persons having no fears of state prosecution except those that are imaginary or
speculative, are not to be accepted as appropriate plaintiffs.” Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979) (internal quotation marks and citation
omitted). Babbitt further explains that it is necessary for a plaintiff to allege “an
intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and [that] there exists a credible threat of
prosecution thereunder.” Id. Plaintiffs contend that “[i]t is insupportable to suggest
that a statute which would clearly be challengeable by a wide variety of persons with
a broad range of interests under ordinary standing rules could become unchallengeable
because a criminal penalty has been attached to the law.” To that end, Plaintiffs argue
that the threat of prosecution test should not apply because statutes with criminal
penalties should not be insulated from civil suit simply because the persons
challenging the law are not at risk of prosecution. We disagree.

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{17} Section 30-18-9, Plaintiffs suggest, has a wide range of effects on persons who
do not directly engage in cockfighting, including: the prohibition from participation
as spectators, the loss of income or the destruction of business, the destruction of
lifestyle because goods and services for birds will not be available, the destruction of
lifestyle because showers and breeders might be mistakenly arrested, and the risk of
illness in non-fighting birds. Plaintiffs contend that the cases cited by Defendants
address criminal laws, the violation of which could only affect the violator—the
person who risked prosecution. As a result, Plaintiffs conclude that because of the
wide-ranging effect of Section 30-18-9 on persons who have no intention of violating
the law, the cited cases—which apply the Babbitt test for standing—should not restrict
the constitutional challenge of Individual Plaintiffs. We are unpersuaded.
{18} Plaintiffs address and attempt to distinguish four cases that were cited by
Defendants in the proceedings below: Nagol v. New Mexico, 923 F. Supp. 190
(D.N.M. 1996); ACLU of N.M. v. City of Albuquerque (ACLU I), 1999-NMSC-044,
128 N.M. 315, 992 P.2d 866; State v. Salazar, 98 N.M. 70, 644 P.2d 1059 (Ct. App.
1982); State v. Marchiondo, 85 N.M. 627, 515 P.2d 146 (Ct. App. 1973). In
Marchiondo, the defendant challenged the constitutionality of a statute, but he
challenged a section under which he had not been charged. 85 N.M. at 630, 515 P.2d
at 149. This Court concluded that the defendant had no standing because “[t]he

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constitutionality of a legislative act is open to attack only by a person whose rights are
affected thereby.” Id. The defendant in Salazar made a similar claim, and that claim
was similarly rejected. 98 N.M. at 70-71, 644 P.2d at 1059-60.
{19} While we agree with Plaintiffs that the defendants in Marchiondo and Salazar
were arguably the only persons who would have been injured by the laws that they
attempted to challenge, neither case relied on such a distinction. In fact, the
Marchiondo Court incorporated the general premise set forth in Babbitt that the
constitutionality of a statute may only be challenged by a person whose rights are
affected by the statute. Marchiondo, 85 N.M. at 630, 515 P.2d at 149. In Marchiondo
and Salazar, the plaintiffs’ rights were not affected by the strictures of the statute
because no charges were filed under the challenged sections. Id.; Salazar, 98 N.M.
at 70-71, 644 P.2d at 1059-60. In the present case, the statute imposes a criminal
penalty on acts related to cockfighting. Unless Individual Plaintiffs can demonstrate
that the statute restricts behavior in which they engage or intend to engage and that
they will be injured as a result of the restriction, Individual Plaintiffs do not have
standing to challenge the statute.
{20} The facts of Nagol and ACLU I are more similar to the present controversy.
The plaintiff in Nagol challenged the constitutionality of a statute that required
persons to provide identification when requested to do so by a police officer. 923 F.

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Supp. at 191. In ACLU I, the plaintiffs challenged the constitutionality of a local
ordinance, which imposed criminal penalties on minors who were found violating an
established curfew. 1999-NMSC-044, ¶¶ 2, 6. In neither case did the reviewing
courts consider whether people in addition to the plaintiffs would be injured by the
enforcement of the criminal statute. See id. ¶¶ 8-9; Nagol, 923 F. Supp. at 194-96.
Instead, in both cases, the courts reiterated the standard to establish actual injury. See
1999-NMSC-044, ¶ 9 (quoting the standard set forth in Babbitt); see also Nagol, 923
F. Supp. at 194 (determining that the plaintiff did not have standing because he “failed
to credibly establish a sufficient likelihood that he will again be arrested under” the
challenged statute). Because we read these cases to embrace the test set forth in
Babbitt, we reject Plaintiffs’ arguments distinguishing Marchiondo, Salazar, Nagol,
and ACLU I. See Prot. & Advocacy Sys., 2008-NMCA-149, ¶ 24 (rejecting a party’s
factual distinction of ACLU I as having no “bearing on the reasoning of the Court”).
Accordingly, we consider the allegations of Individual Plaintiffs in order to determine
whether there is a credible threat of prosecution under Section 30-18-9. See Prot. &
Advocacy Sys., 2008-NMCA-149, ¶ 21 (reading ACLU II to “indicate that a credible
threat of prosecution was a critical consideration”).
{21} Based on the breadth of conduct prohibited by the statute—causing, sponsoring,
arranging, holding, or participating in a fight between birds, as well as owning or

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equipping a bird to fight—we must examine the complaints of each Individual
Plaintiff in order to determine whether they have alleged actual injury under Babbitt.
a. 	Individual Standing
{22} 	Individual Plaintiffs can be divided into two categories for the purposes of
evaluating actual injury: 	Business Plaintiffs and Spectator Plaintiffs. 	Business
Plaintiffs are comprised of DD Animal Nutrition and Supply (DD), Bullock’s Feed
(Bullock’s), Mesilla Valley Feeds (Mesilla), Lewallen Supply (Lewallen), Johnny’s
Service Station (Johnny’s), and Hilltop Inn (Hilltop). DD is a feed store that provides
feed, nutritional supplements, and medications to a wide variety of animal owners,
including persons who fight birds. 	Bullock’s and Mesilla also supply feed to the
gamefowl community, as well as to other animal owners. Lewallen sells cockfighting
materials to those who participate in the activity. Johnny’s is an automobile fuel and
service station that operates in Jal, New Mexico, where cockfighting was conducted
before the ban was enacted. 	Hilltop is a hotel, also located in Jal, which had
benefitted from the cockfights that were previously held in the community.
{23} 	Spectator Plaintiffs include Johnny Montoya, the owner of Johnny’s, Raul
Trevino, the owner of Lewallen, and Pradip Bhakta, the owner of Hilltop. 	Each
Spectator Plaintiff alleged that he attended cockfights and that the ban on the activity
deprived him of an aspect of cultural expression. 	We first consider Business

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Plaintiffs’ standing to challenge the cockfighting ban.
i. Business Plaintiffs
{24} The Babbit standard requires us to consider whether Business Plaintiffs have
alleged (1) an arguable constitutional interest in continuing to engage in a course of
conduct that is prohibited by the challenged statute, (2) an intent to continue to engage
in that conduct, and (3) a credible threat of prosecution under Section 30-18-9(A)(2).
See Babbitt, 442 U.S. at 298. We begin by evaluating whether Business Plaintiffs
have alleged an arguable constitutional interest in continuing their activities.
{25} Each Business Plaintiff has alleged a purely economic interest. Bullock’s
alleged that “[t]he ban on cockfighting . . . will irreparably harm Bullock’s by
significantly reducing its gross receipts, causing the loss of an employee, and making
it difficult, if not impossible, for Bullock’s to remain in business.” DD, Mesilla,
Johnny’s, Lewallen, and Hilltop allege similar interests. None of these entities explain
how their intent to continue to provide services and equipment for cockfighting
“deters the exercise of his constitutional rights.” Id. (internal quotation marks and
citation omitted). Plaintiffs do not argue that continuing to engage in economic
activity in a particular manner is conduct that is “arguably affected with a
constitutional interest.” Id. Nor do Plaintiffs provide any authority for the proposition
that evidence of economic damage supports that they have even an arguable

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constitutional interest in continuing to engage in particular business activities.
{26} Business Plaintiffs’ injuries are distinct from the cultural injuries alleged by the
remaining plaintiffs, which we will discuss in subsequent paragraphs. Plaintiffs have
specifically rooted the cultural injury argument in Article II, Section 5 of the New
Mexico Constitution. Although this argument may not ultimately be viable, the
allegations are sufficient to support an “arguable” constitutional interest. Babbit, 442
U.S. at 298. Although Plaintiffs have attempted to include the activities of Business
Plaintiffs in this constitutional argument by alleging that the cockfighting ban
“violates the constitutionally protected rights of persons in the State of New Mexico
to acquire, possess, and use property for the purposes of cockfighting,” we are
unpersuaded that the constitution protects Business Plaintiffs’s right to engage in
particular business activities so as to avoid the alleged injury—economic loss. See
City of Sunland Park v. Santa Theresa Servs. Co., 2003-NMCA-106, ¶ 41, 134 N.M.
243, 75 P.3d 843 (“To be accorded standing on a particular issue the party must show
that the statute or constitutional provision relied on reaches or provides protection
against the injury.). Because Business Plaintiffs have not demonstrated a connection
between constitutional protections and the alleged injury, they have failed to establish
an arguable constitutional interest in continuing to engage in their particular business
activities. Therefore, they have no individual standing to challenge the

NM Gamefowl v. State, No. 28,388 (filed 5/8/09). Pg 18, line 7. Lujan case changed from a short cite to a full cite.
17
constitutionality of Sections 30-18-1 and -9.
ii. Spectator Plaintiffs
{27} As explained before, Spectator Plaintiffs allege past attendance at cockfights
and complain that the cockfighting ban prevents them from future attendance at events
that they consider to be an aspect of cultural expression. Section 30-18-9(A) prohibits
the knowing participation in a fight between cocks for the purposes of monetary gain
or entertainment, and “participation” includes “owning or equipping” a participating
animal. Section 30-18-9(A)(2). Spectator Plaintiffs do not allege that they either own
or equip participating animals, but rather they focus on their inability to attend these
events. We observe that the dogfighting ban does impose a criminal penalty on
spectators. Section 30-18-9(A)(1) (defining participation as “being present at a dog
fight without attempting to interfere with or stop the contest”). The cockfighting
statute, however, does not prohibit such passive involvement in a cockfight. We
therefore conclude that Spectator Plaintiffs did not allege an actual injury for the
purposes of standing because there is no credible threat of prosecution related to mere
attendance at a cockfight.
b. Third-Party Standing
{28} Although Individual Plaintiffs do not use the term “third-party standing,” they
allege injuries on behalf of others. Accordingly, we continue our standing analysis

NM Gamefowl v. State, No. 28,388 (filed 5/8/09). Page 19, line 13. Deleted “or associational”
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in order to determine whether Individual Plaintiffs have third-party standing to
challenge Sections 30-18-1 and -9. Third-party standing involves a suit by plaintiffs
on behalf of other persons who intend to engage in conduct that will violate a
challenged provision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)
(“[W]hen the plaintiff is not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily substantially more difficult to
establish.” (internal quotation marks and citation omitted)). We examine three criteria
in order to determine whether Individual Plaintiffs have standing to bring an action
to vindicate the rights of a third party—in the present case, persons who intend to
participate in cockfighting. N.M. Right to Choose/NARAL v. Johnson (NARAL), 1999-
NMSC-005, ¶ 13, 126 N.M. 788, 975 P.2d 841. Again, we evaluate the injury in fact,
but we also consider the relationship between the litigants and the third party, as well
as the ability of the third party to vindicate his or her own interests. Id.
{29} We have already considered the injuries to the Individual Plaintiffs and have
concluded that those alleged injuries were insufficient to establish a credible threat of
prosecution under Section 30-18-9. In addition, Individual Plaintiffs have failed to
establish the third criteria: they have provided no reason why a person who has
violated or intends to violate Section 30-18-9 cannot himself challenge the
constitutionality of the statute. Cf. NARAL, 1999-NMSC-005, ¶ 14 (explaining that

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“privacy concerns and time constraints impose a significant hindrance on the ability
of Medicaid-eligible women to protect their own interest in obtaining medically
necessary abortions”). Any person threatened with prosecution under the statute will
“likely be highly motivated to bring such a challenge.” ACLU II, 2008-NMSC-045,
¶ 32. 	Accordingly, we conclude that Individual Plaintiffs do not have third party
standing to challenge the cockfighting ban, and we affirm the district court. We now
turn to the standing of NMGA, as an association, to contest the constitutionality of
Sections 30-18-1 and -9.
2. 	Associational Standing
{30} 	Our Supreme Court also addressed associational standing in ACLU II and
explained that an association has standing to sue on behalf of its members when (1)
the members would otherwise have standing to sue, (2) the interests that the
association seeks to protect are germane to the association’s purpose, and (3) the
claim asserted and the relief requested do not require the individual members to
participate in the lawsuit. 2008-NMSC-045, ¶ 30. Plaintiffs contend that the district
court improperly concluded that NMGA does not have associational standing to sue.
We agree.
{31} 	The first element of associational standing is that the individual members of an
association would have standing to sue. 	See id. 	It is well established that an

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association is required to allege that at least one of its members is “suffering
immediate or threatened injury.” Warth, 422 U.S. at 511. Plaintiffs have alleged that
[m]any of [NMGA’s] members live in rural areas and are devoted to
rural lifestyles, of which gamefowl breeding and/or participating in
gamefowl 	shows 	or 	fights 	are, 	in 	New 	Mexico, 	longstanding,
culturally[]bound and significant activities. Most members are working
people with families who are likewise involved with the gamefowl
community, either as participants in the sport, persons who simply fancy
and keep the birds, persons who like to breed and show them, or persons
who support the gamefowl community by providing goods and/or
services to those who keep, breed, show birds, and/or participate in the
sport.
Based on this allegation, the members of NMGA, unlike Individual Plaintiffs, engage
in activities that are prohibited by Section 30-18-9, i.e., owning or equipping cocks
for the purpose of fighting. As a result, the members of NMGA are at a credible risk
of prosecution for these activities. See ACLU II, 2008-NMSC-045, ¶ 30.
{32} 	Similarly, NMGA has no difficulty establishing the second element of
associational standing: 	that the claim of unconstitutionality is germane to the
organization’s purpose. 	See id. 	The complaint alleges that the NMGA serves the
following purpose:
[T]his corporation is organized solely for binding Breeders, Cockers, and
Fanciers of Gamefowl into an organization for their mutual benefit, by
keeping the fighting of gamefowl legal in New Mexico and for the
exchange of better . . . methods and ideas tending toward perpetuation
and improvement of the sport of cocking, various breeds of gamefowl
and to cooperate with [s]tate and [f]ederal [a]gencies which seek to
control poultry diseases.

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Plaintiffs’ constitutional attack on the cockfighting ban is germane to NMGA’s stated
purpose to keep cockfighting legal.
{33} 	Defendants contend that NMGA cannot establish the third element of
associational standing because the relief requested in the complaint is not common to
NMGA’s entire membership. 	Specifically, Defendants cite Warth and argue that
because not all of NMGA’s members participate in cockfighting, the damages claims
are not shared by the entire membership to an equal degree, and each member must
be a party to the suit in order to recover for the individual injuries. 	We are
unpersuaded.
{34} 	In Warth, the association sought monetary damages for its members. 422 U.S.
at 515. The Supreme Court of the United States held that “to obtain relief in damages,
each member of [the association] who claims injury as a result of [the] respondents’
practices must be a party to the suit, and [the association] has no standing to claim
damages on [the member’s] behalf.” 	Id. at 516. In the present case, the complaint
does not seek monetary damages, but instead it seeks a ruling that Sections 30-18-1
and -9 are unconstitutional and requests injunctive relief to prevent the enforcement
of the statutes. 	Warth explains that “[i]f in a proper case the association seeks a
declaration, injunction, or some other form of prospective relief, it can reasonably be
supposed that the remedy, if granted, will inure to the benefit of those members of the

22
association actually injured.” 422 U.S. at 515. Thus, NMGA sought relief that can
address the injury claimed by the entire membership.
{35} 	Defendants also argue that because Sections 30-18-1 and -9 impose a criminal
sanction and an organization cannot be subject to a criminal penalty, NMGA cannot
represent its members to challenge the cockfighting ban. Again, we disagree. First,
Defendants cite no authority for the proposition that an association cannot have
standing to challenge a criminal law on behalf of its members. Second, the law of
standing does not require that the organization suffer the injury allegedly caused by
the challenged statute. 	Associational standing may be based either on “whatever
rights and immunities the association itself may enjoy” or “the rights of [the
association’s] members.” Warth, 422 U.S. at 511. Although the individual members
and not the entity face the risk of prosecution, those members are not necessary to the
litigation because the relief requested is prospective. See id. at 515 (observing that
whether an association has standing “depends in substantial measure on the nature of
the relief sought”).
{36} 	For these reasons, we conclude that NMGA had associational standing to
challenge the constitutionality of Sections 30-18-1 and -9. 	We now turn to the
substantive challenges to the cockfighting ban. Although our holding renders NMGA
as the only plaintiff with standing, the arguments we address were advanced by

23
Plaintiffs, and we will refer to them as Plantiffs’ arguments.
C. 	Article II, Section 5
{37} 	Plaintiffs contend that Article II, Section 5 of the New Mexico Constitution
prevents the Legislature from prohibiting cockfighting as a culturally bound use of
property. 	Article II, Section 5 of the New Mexico Constitution states that “[t]he
rights, privileges and immunities, civil, political and religious guaranteed to the people
of New Mexico by the Treaty of Guadalupe Hidalgo shall be preserved inviolate.” At
this point, our analysis would typically turn to the content of the Treaty of Guadalupe
Hidalgo in order to determine what “rights, privileges and immunities” were
guaranteed by Article II, Section 5 of the New Mexico Constitution. 	Plaintiffs,
however, argue that the language of the Treaty and subsequent interpretations of the
Treaty should not be the focus of our analysis. Instead, Plaintiffs direct us to consider
only “the legislative intent of the framers of [Article II, Section 5 of the New Mexico
Constitution].” At the same time, Plaintiffs would have us evaluate deleted provisions
of the Treaty and the Protocols of Querétaro—a diplomatic explanation of the deleted
provisions—as interpretative aids to the intent of the framers.
{38} 	We fail to see how we can ascertain the intent of the framers without
considering the language of the Treaty, the whole of which the framers incorporated
into our constitution. A common sense reading of Article II, Section 5 of the New

24
Mexico Constitution demonstrates that the framers intended to do no more than
guarantee 	the 	people 	of 	New 	Mexico 	the 	rights, 	privileges, 	and 	immunities
encompassed by the Treaty. Therefore, we examine the language of the Treaty, law
interpreting that language, and any other reliable source that will shed light on the
rights that the framers intended to convey to the citizens of New Mexico when Article
II, Section 5 of the New Mexico Constitution was adopted. 	See Prot. & Advocacy
Sys., 2008-NMCA-149, ¶ 43 (“We construe constitutional amendments and statutes
by first looking to the text of the amendment or statute and then turning to other
indicators of the intent of the framers of the amendment[.]”). Accordingly, we turn
to the language of the Treaty.
{39} 	Plaintiffs do not point to a particular provision or article of the Treaty that can
be read to protect cockfighting—or even culturally bound uses of property. Instead,
Plaintiffs appear to argue that the Treaty in its entirety, read together with other
documents contemporary to the signing of the Treaty, was designed to “ensure that the
United States would forever recognize the rights of persons in the ceded territory, and
their successors, to property of all kinds, including all uses of that property recognized
by Mexican law and those uses of property which are culturally bound, even where
those uses might not be culturally prevalent in the United States.” We thus begin with
a brief history of the Treaty and an explanation of the documents that Plaintiffs argue

25
are relevant to our analysis.
1. 	The Treaty
{40} 	The Treaty was signed in 1848 by the governments of the United States and
Mexico in order to end hostilities between those countries. See Treaty of Guadalupe
Hidalgo, U.S.-Mex., Feb. 2, 1848, reprinted in 1 William M. Malloy, Treaties,
Conventions, Int’l Acts, Protocols & Agreements Between the United States of
America and Other Powers 1776-1909, at 1107 (1910) (hereinafter Treaty); Montoya
v. Tecolote Land Grant ex rel. Tecolote Bd. of Trs., 2008-NMCA-014, ¶ 3, 143 N.M.
413, 176 P.3d 1145 (filed 2007). The Preamble to the Treaty states that the purpose
of the two governments was twofold: 	first, “to put an end to the calamities of the
war,” and second, “to establish upon a solid basis relations of peace and friendship,
which shall confer reciprocal benefits upon the citizens of both, and assure the
concord, harmony, and mutual confidence wherein the two people[] should live, as
good neighbors [sic].” Treaty, supra, at 1107. We briefly examine the twenty-three
Articles of the Treaty in order to discover a basis for Plaintiffs’ contention that the
New Mexico Constitution, by way of the Treaty, protects citizens’ rights to the
culturally bound use of property.
{41} 	Article I simply declares a “universal peace” between the United States and
Mexico. Treaty, supra, at 1108. Articles II, III, and IV arrange for the suspension of

26
hostilities between the two countries, including the cessation of any blockades, the
withdrawal of troops, the restoration to Mexico of “castles, forts, territories, places,
and possessions” taken by the United States, and the return of prisoners of war.
Treaty, supra, at 1108-09. Article V establishes the boundary between the United
States and Mexico, and Article VI provides for free passage of the Gulf of California
for the “vessels and citizens of the United States,” as well as for the construction of
certain roads and canals on the river Gila. Treaty, supra, at 1109-11. Along those
lines, Article VII outlines the rights of the countries to navigate certain rivers. Treaty,
supra, at 1111.
{42} Article VIII discusses the rights of Mexicans who were living in “territories
previously belonging to Mexico.” Treaty, supra, at 1111. This Article explains that
those persons “may either retain the title and rights of Mexican citizens, or acquire
those of citizens of the United States” and establishes a timetable for the election of
citizenship. Id. at 1111-12. In addition, Article VIII protects “property of every kind”
belonging to Mexicans who were not at the time residing in the territories that had
previously belonged to Mexico and dictates that such property “shall be inviolably
respected.” Treaty, supra, at 1112. Article IX asserts that
Mexicans who, in the territories aforesaid, shall not preserve the
character of citizens of the Mexican Republic, conformably with what is
stipulated in the preceding article, shall be incorporated into the Union
of the United States, and be admitted at the proper time (to be judged of

27
by the Congress of the United States) to the enjoyment of all the rights
of citizens of the United States, according to the principles of the
Constitution; and in the mean time, shall be maintained and protected in
the free enjoyment of their liberty and property, and secured in the free
exercise of their religion without restriction.
Treaty, supra, at 1112.
{43} 	As we will explain below, Congress deleted Article X from the Treaty. Treaty,
supra, at 1112. 	Article XI concerns the relationship between Mexico, the United
States, and Native Americans. Treaty, supra, at 1112-13. Articles XII, XIII, XIV, and
XV deal with the financial responsibilities of both countries regarding payment for
territories, and the payment and discharge of debts and claims. Treaty, supra, at 1113-
14. 	In Article XVI, both parties reserve the right to fortify their territories and in
Article XVII, the parties revived, in part, an earlier treaty. 	Treaty, supra, at 1115.
Articles XVIII, XIX, and XX deal with importation of merchandise into Mexico
during the occupation of United States forces and for a period of time afterward.
Treaty, supra, at 1115-16. Article XXI provides for the amicable resolution of future
disputes between the two countries. Treaty, supra, at 1117. Article XXII sets forth
the rules to be observed in the event that war should again break out between the two
countries. Treaty, supra, at 1117-18. The final Article, Article XXIII, lays out the
procedure for ratification and signing of the Treaty. Treaty, supra, at 1118-19. We
now turn to review the other documents and provisions that Plaintiffs would have us

28
evaluate.
2. 	Related Documents
{44} 	The Treaty, in its final form, is not the treaty that was negotiated and presented
to Congress for ratification. During the ratification process, Congress edited Article
IX and deleted Article X in its entirety. See Jon Michael Haynes, Comment, What Is
it About Saying We’re Sorry? New Federal Legislation and the Forgotten Promises
of the Treaty of Guadalupe Hidalgo, 3 Scholar 231, 251-53 (2001). Although it is
lengthy, we offer the entire text of the rejected Article IX in order to provide context
for our analysis:
The Mexicans who, in the territories aforesaid, shall not preserve
the character of citizens of the Mexican republic, conformably with what
is stipulated in the preceding article, shall be incorporated into the Union
of the United States, and admitted as soon as possible, according to the
principles of the federal constitution, to the enjoyment of all the rights
of the citizens of the United States. 	In the mean time they shall be
maintained and protected in the enjoyment of their liberty, their property,
and the civil rights now vested in them according to the Mexican laws.
With respect to political rights, their condition shall be on an equality
with that of the inhabitants of the other territories of the United States,
and at least equally good as that of the inhabitants of Louisiana and the
Floridas, when these provinces, by transfer from the French republic and
the crown of Spain, became territories of the United States.
The same most ample guaranty shall be enjoyed by all the
ecclesiastics and religious corporations or communities, as well in the
discharge of the offices of their ministry, as in the enjoyment of their
property of every kind, whether individual or corporate. This guaranty
shall embrace all temples, houses, and edifices dedicated to the Roman
Catholic worship[]; as well as all property destined to its support, or to
that of schools, hospitals, and other foundations for charitable or

29
beneficent purposes. No property of this nature shall be considered as
having become the property of the American government, or as subject
to be by it disposed of, or diverted to other uses.
Finally, the relations and communication between the Catholics
living in the territories aforesaid, and their respective ecclesiastical
authorities, shall be open, free, and exempt from all hindrance whatever,
even []though such authorities should reside within the limits of the
Mexican republic, as defined by this treaty[]; and this freedom shall
continue so long as a new demarkation of ecclesiasticals districts shall
not have been made, conformably with the laws of the Roman Catholic
[C]hurch.
5 Exec. Doc. No. 50, at 16-17 (1849). The ratified Article IX omits the second two
paragraphs, both of which were included in the rejected Article IX. See Treaty, supra,
at 1112; 5 Exec. Doc. No. 50, at 16-17. Further, the language “admitted as soon as
possible” in the rejected Article IX, 5 Exec. Doc. No. 50, at 16, was changed to
“admitted at the proper time (to be judged of by the Congress of the United States).”
Treaty, supra, at 1112. Small additional changes in the sentence structure of the first
paragraph are also apparent. The deleted Article X, in relevant part, stated that “[a]ll
grants of land made by the Mexican government, or by the competent authorities in
territories previously appertaining to Mexico, and remaining for the future within the
limits of the United States, shall be respected as valid, to the same extent that the same
grants would be valid if the said territories had remained within the limits of Mexico.”
5 Exec. Doc. No. 50, at 17.
{45} After the revisions, and after the Mexican government protested those revisions,

30
representatives of the United States government drafted the Protocol of Querétaro
(Protocol), which “effectively dictated that the Treaty should be interpreted as if
Article X had remained an operative part of the Treaty.” Haynes, supra, at 255. The
Protocol also expressly states that the United States government, in editing Article IX,
did not intend to diminish in any way what was agreed upon by [Article
IX and] . . . all the privileges and guarantees, civil, political, and
religious, which would have been possessed by the inhabitants of the
ceded territories, if the IXth article of the [T]reaty had been retained, will
be enjoyed by them, without any difference, under the article which has
been substituted.
Treaty, supra, at 1119. With regard to Article X, the Protocol states the following:
The American Government by suppressing the Xth article of the
[Treaty] did not in any way intend to annul the grants of lands made by
Mexico in the ceded territories. 	These grants, notwithstanding the
suppression of the article of the treaty, preserve the legal value which
they may possess, and the grantees may cause their legitimate [titles] to
be acknowledged before the American tribunals.
Conformably to the law of the United States, legitimate titles to
every description of property, personal and real, existing in the ceded
territories are those which were legitimate titles under the Mexican law
in California and New Mexico up to the 13th of May, 1846, and in Texas
up to the 2d [of] March, 1836.
Treaty, supra, at 1119 (second alteration in original). The Protocol also described
amendments to Article XII, but Plaintiffs concede that those changes are not relevant
to the current discussion. Treaty, supra, at 1120. The enduring vitality and relevance
of the Protocol is uncertain. 	See Christopher David Ruiz Cameron, One Hundred
Fifty Years of Solitude: Reflections on the End of the History Academy’s Dominance

31
of Scholarship on the Treaty of Guadalupe Hidalgo, 5 Sw. J. L. & Trade Am. 83, 89-
90 (1998) (explaining that the Secretary of State considered the Protocol to have “no
value” and that it was “merely a record of conversations between diplomats and
lacked the force or effect of law” (internal quotation marks omitted)). We nonetheless
consider its language, together with the edited and deleted provisions of the Treaty,
in order to determine whether the framers of the New Mexico Constitution intended
to incorporate protections into Article II, Section 5 for culturally bound uses of
personal property.
3. The Treaty and the Use of Culturally Bound Property
{46} With that as background, we reiterate Plaintiffs’ core argument:
A complete reading of the Treaty establishes that the [g]overnment
of Mexico wanted to ensure that the United States would forever
recognize the rights of persons in the ceded territory, and their
successors, to property of all kinds, including all of the uses of that
property recognized by Mexican law and those uses of property which
are culturally bound, even where those uses might not be culturally
prevalent in the United States.
Plaintiffs contend that the framers of the New Mexico Constitution intended to
provide “broader civil, political, and religious rights protections . . . than that
guaranteed by other [f]ederal and [s]tate constitution[s].” As a result, Plaintiffs assert
that because they do not seek to enforce the Treaty, but instead the state constitution,
the language in the Treaty that limits the rights conferred is not relevant.

32
{47} 	We do not reach Plaintiffs’ characterization of the intent of the framers because
we are bound by the plain language of the Treaty. Article II, Section 5 of the New
Mexico Constitution preserves the “rights, privileges and immunities, civil, political
and religious guaranteed to the people of New Mexico by the Treaty of Guadalupe
Hidalgo.” We are therefore bound by the Treaty and the rights—and limitations on
those rights—that were actually conferred by the agreement. After reviewing each
provision of the Treaty, we conclude that the only arguably relevant sections of the
Treaty are Articles VIII, IX, and X, which concern real and personal property rights.
We thus consider each of these Articles, and the accompanying documents relied on
by Plaintiffs, in turn.
a. 	Article VIII
{48} 	The relevant portion of Article VIII states that the “property of every kind, now
belonging to Mexicans not established” in the territories previously belonging to
Mexico “shall be inviolably respected,” and that “[t]he present owners, the heirs of
these, and all Mexicans who may hereafter acquire said property by contract, shall
enjoy with respect to it guarantees equally ample as if the same belonged to citizens
of the United States.” Treaty, supra, at 1112. This provision refers to property of
every kind, but it extends only those rights that would apply to the same property if
it “belonged to citizens of the United States.” Id. Plaintiffs do not contend that some

33
separate law of the United States protects the culturally bound use of personal
property. Therefore, although Article VIII extends its protection to “every kind” of
property, those protections are limited to those recognized by the law of the United
States and not the law of Mexico. Id.; see Amaya v. Stanolind Oil & Gas Co. (Amaya
II), 158 F.2d 554, 558 (5th Cir. 1947) (“The fundamental purpose of [Article VIII]
was to secure Mexicans in their title and to guarantee to them in that respect the same
protection of law that it extended to the citizens of the United States.”). Further, even
if Article VIII could be read to require the application of the law of Mexico to
personal property, Plaintiffs have not alleged any particular Mexican law that protects
the culturally bound uses of personal property, either now or at the time that Article
II, Section 5 of the New Mexico Constitution was adopted.
b. Article IX
{49} Plaintiffs argue that because the Protocol reserved the rights of the rejected
Article IX, the language from that rejected provision can be used to establish an intent
to ensure that “the United States would move as quickly as possible to make the ceded
territories into States while ensuring that those living in the newly ceded territories
would continue to be protected in their property and liberty rights.” Plaintiffs ignore
the limiting language that accompanied both versions of Article IX.
{50} Both the rejected Article IX and the ratified Article IX guarantee that Mexicans

34
in the newly established United States territory may be admitted as citizens of the
United States and that when they are admitted, they will enjoy “all the rights of
citizens of the United States.” Treaty, supra, at 1112; 5 Exec. Doc. No. 50, at 16. The
very next sentence of the ratified Article IX explains that “in the mean time, [they]
shall be maintained and protected in the free enjoyment of their liberty and property,
and secured in the free exercise of their religion without restriction.” Treaty, supra,
at 1112 (emphasis added). The rejected Article IX reads instead that “[i]n the mean
time they shall be maintained and protected in the enjoyment of their liberty, their
property, and the civil rights now vested in them according to the Mexican laws.” 5
Exec. Doc. No. 50, at 16 (emphasis added). Plaintiffs use the Protocol to argue that
the revisions did not weaken the protections of the Treaty with regard to cultural
practices.
{51} 	First, we fail to see that the excised language provides any more protection for
cultural practices than the ratified language. 	The rejected Article IX refers to the
enjoyment of liberty, property, and civil rights according to Mexican law—it does not,
even generally, reach out to cover cultural practices. The ratified Article IX similarly
protects the free “enjoyment of their liberty and property” and condenses the two
deleted paragraphs into a succinct protection for “the free exercise of their religion
without restriction.” Treaty, supra, at 1112; 5 Exec. Doc. No. 50, at 16-17. Despite

35
the assurances of the Protocol that no rights were lost in the revisions, neither article
addresses the cultural use of property.
{52} Second, accepting—for the sake of argument only—that Plaintiffs are correct
and that the Protocol evidences an intent by the Mexican government that Mexican
citizens should retain greater rights in the new territories under familiar Mexican law,
both the rejected and the ratified Articles limit the expanded rights until the time that
United States citizenship is conferred. It is well established that
Article IX of the Treaty, upon which [the d]efendant relies and which
protects the free exercise of religion ‘in the mean time,’ was designed
only to address the interim period between the ratification of the Treaty
and ‘the enjoyment of all the rights of citizens of the United States’ once
individuals were admitted as citizens following the one year allowed in
Article VIII, 9 Stat. 922, for the election of citizenship.
State v. Fry, 2006-NMSC-001, ¶ 7 n. 2, 138 N.M. 700, 126 P.3d 516 (filed 2005). We
understand Plaintiffs to argue that because Article II, Section 5 of the New Mexico
Constitution adopted the privileges and rights of the Treaty and intended for them to
apply to all the people of New Mexico, the limitations of the Treaty do not apply. We
are unpersuaded. As we have explained, we are bound by the language of our
constitution, which does not extend the protections of the Treaty beyond the language
of the Treaty.
{53} Plaintiffs argue that it is “absurd” to posit that New Mexico cannot confer rights
that did not exist in the Treaty itself. We agree with Plaintiffs that the framers were

36
free to lawfully adopt state constitutional provisions that do not provide less
protection than the federal constitution. 	Our review of the Treaty, however,
demonstrates that the framers did not adopt rights that do not exist within the language
of the Treaty. Accordingly, we conclude that Article II, Section 5 of the New Mexico
Constitution extends both the protections and the limitations of the Treaty to all of the
citizens of New Mexico and that Article IX of the Treaty, even considering the
extraneous documents, cannot be read to protect the culturally bound use of personal
property.
c. 	Article X
{54} 	Although the deleted Article X appears to be concerned only with real
property, Plaintiffs contend that the Protocol demonstrates that the parties to the
Treaty—and later, the framers of Article II, Section 5 of the New Mexico
Constitution—intended to protect personal property as well as its use. As we have
stated, the United States representatives explained their intentions for deleting Article
X in the Protocol as evidenced by the statement that “legitimate titles to every
description of property, personal and real, existing in the ceded territories are those
which were legitimate titles under the Mexican law” in California, New Mexico, and
Texas until certain dates. 	Treaty, supra, at 1119. Plaintiffs argue that bare title to
property is meaningless and that it is “the right to use and enjoy property that gives

37
it value and meaning.”
{55} Deleted Article X of the Treaty addressed only real property by confining itself
to “[a]ll grants of land made by the Mexican government, or by the competent
authorities.” 5 Exec. Doc. No. 50, at 17. The Protocol refers to title to property, but
we see no evidence in either document to indicate that the drafters had in mind the
cultural use of personal property. Instead, it would appear that deleted Article X of
the Treaty was primarily concerned with existing land disputes in Texas. Amaya v.
Stanolind Oil & Gas Co. (Amaya I), 62 F. Supp. 181, 195-96 (S.D. Tex. 1945)
(quoting correspondence between the Secretary of State and the Mexican Minister of
Foreign Relations at the time that Article X was stricken), aff’d, 158 F.2d 554 (Tex.
1946). It would further seem that the language inserted into the Protocol regarding
deleted Article X of the Treaty was unauthorized and considered not “obligatory as
an international act.” Amaya I, 62 F. Supp. at 196-98 (quoting the instructions sent
by the State Department to Querétaro with the drafters of the Protocol and a later letter
from the Secretary of State to the Minster to Mexico regarding the Protocol).
{56} Plaintiffs cite Nollan v. California Coastal Commission, 483 U.S. 825 (1987),
and maintain that the right to have title to the birds is worthless without the right to
the cultural use of the birds. This argument appears to be based on the Fifth
Amendment to the United States Constitution, which prohibits the taking of private

38
property for public use without just compensation. 	U.S. Const. amend. V. 	The
Supreme Court of the United States has explained that “government regulation of
private property may be so onerous that its effect is tantamount to a direct
appropriation or ouster.” 	Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 528 (2005).
Thus, Plaintiffs argue that the ban on cockfighting is so onerous that it is a direct
appropriation of property and that such an effect creates an unconstitutional regulatory
taking of property. From there, Plaintiffs seem to suggest that the unconstitutional
taking of property can be avoided if we read deleted Article X of the Treaty and the
Protocol to protect more than mere title to property, but also to protect its uses. We
are not persuaded.
{57} 	Nollan concerned a local building commission that refused to issue a building
permit to the property owners unless they would agree to allow the public an easement
across their property. 	483 U.S. at 828. 	The Supreme Court of the United States
considered this condition for building to amount to an uncompensated taking because
“as to property reserved by its owner for private use, the right to exclude [others is]
one of the most essential sticks in the bundle of rights that are commonly
characterized as property.” Id. at 831 (alteration in original) (internal quotation marks
and citation omitted). The condition imposed by the commission was more than a
regulation of property—it was effectively “a permanent physical occupation of the

39
property.” Id. at 831-32 (alteration in original) (internal quotation marks and citation
omitted).
{58} Plaintiffs contend that Sections 30-18-1 and -9 also impose more than a mere
regulation of property because the uses of gamefowl are limited, and if they cannot
be fought, they have no value or use. We find an analogy to Nollan to be inapposite.
In Nollan, the plaintiffs owned an option to buy the real property, but they could not
exercise the option unless they demolished the existing building and rebuilt. 483 U.S.
at 828. The conditions set by the commission foreclosed such demolition and
rebuilding unless the plaintiffs would permit the public to have access to the property.
Id. In the present case, the New Mexico Legislature has imposed a ban on
cockfighting, and Plaintiffs want to continue to engage in that restricted activity. The
test set forth in Nollan, the “permanent physical occupation” of property, simply does
not apply to the personal property at issue in the present case. Id. at 831-32 (internal
quotation marks and citation omitted).
{59} Instead, we consider Andrus v. Allard to better fit the circumstances of the
present case. 444 U.S. 51 (1979). In Andrus, the federal government imposed a ban
that was designed to preserve certain species of birds. Id. at 52-53. The law restricted
the sale of the birds, as well as their parts, nests, or eggs. Id. at 54. The plaintiffs
were prosecuted under the law for the sale of Indian artifacts that had been constructed

40
using protected bird parts but that were crafted prior to the passage of the law. Id.
The complaint alleged, in relevant part, that the law amounted to a regulatory taking
of property and violated the Fifth Amendment. Id. at 55.
{60} The Andrus Court explained that “government regulation—by
definition—involves the adjustment of rights for the public good.” Id. at 65. Such an
“adjustment curtails some potential for the use or economic exploitation of private
property.” Id. The Court made the following observation:
The regulations challenged here do not compel the surrender of the
artifacts, and there is no physical invasion or restraint upon them. Rather,
a significant restriction has been imposed on one means of disposing of
the artifacts. But the denial of one traditional property right does not
always amount to a taking. At least where an owner possesses a full
“bundle” of property rights, the destruction of one “strand” of the bundle
is not a taking, because the aggregate must be viewed in its entirety.
Id. at 65-66. It was crucial to the Court that the plaintiffs retained “the rights to
possess and transport their property, and to donate or devise the protected birds.” Id.
at 66. The Court then reviewed a number of cases that upheld certain regulations
limiting trade, particularly the regulation of alcohol. Id. at 67. Ultimately, the Court
held that “the simple prohibition of the sale of lawfully acquired property in this case
does not effect a taking in violation of the Fifth Amendment.” Id. at 67-68.
{61} In the present case, the cockfighting ban does not prevent the ownership or
breeding of birds. The ban prevents fighting—one use of the birds—and as a result,

41
only destroys “one strand of the bundle” of property rights. See id. at 65-66. Absent
evidence of a fight between birds for profit or entertainment, bird owners are not
compelled to surrender the birds and there is no physical invasion or restraint on the
birds. Viewing the aggregate of property rights in its entirety, we conclude that the
restriction of one use for the birds is not a taking. 	See id. at 66 (recognizing that
although the law might “prevent the most profitable use” of the property, reduction
in value of property “is not necessarily equated with a taking”).
{62} 	Because we conclude that Sections 30-18-1 and -9 do not effect a regulatory
taking of Plaintiffs’ property, we find no constitutional barrier to a literal reading of
the language of deleted Article X of the Treaty and the Protocol. Accordingly, we
hold that the deleted Article X of the Treaty related only to real property and that the
Protocol’s explanation of the deletion of Article X refers only to title to property. As
a result, the provisions of deleted Article X impose no barrier to our Legislature’s
enactment of a ban on cockfighting, which restricts the cultural use of certain
property.
III. 	CONCLUSION
{63} 	We first decline to review the Legislature’s adherence to constitutionally
mandated procedures for the enactment of bills. 	We next conclude that although
Individual Plaintiffs have no standing to challenge the constitutionality of Sections 30-

42
18-1 and -9, NMGA does have associational standing to challenge the cockfighting
ban. Finally, we conclude that Article II, Section 5 of the New Mexico Constitution
does not render the statutory ban on cockfighting unconstitutional. 	Although we
reverse the district court as to NMGA’s standing to challenge Sections 30-18-1 and
-9, we affirm the judgment.
{64} 	IT IS SO ORDERED.
________________________________
CELIA FOY CASTILLO, Judge
WE CONCUR:
________________________________
JAMES J. WECHSLER, Judge
________________________________
LINDA M. VANZI, Judge

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