*1 2,May No. [L.A. 31911. 1985.] TRANSPORTATION,
THE PEOPLE ex rel. DEPARTMENT OF Plaintiff and v. Respondent, CALIFORNIA,
NAEGELE OUTDOOR OF ADVERTISING COMPANY INC., Defendant and Appellant. ADVERTISING, INC.,
DESERT OUTDOOR
Plaintiff and Respondent, CALIFORNIA, NAEGELE OUTDOOR ADVERTISING COMPANY OF INC., Defendant and Appellant.
Counsel Best, & Gaut, Best Krieger, Barton C. Ronald Kohut and J. Richard Cross for Defendant and Appellant. Karshmer,
Barbara E. & Art Karshmer Kesselman and Bunce as Frampton, Amici Curiae on behalf Defendant Appellant. Jr., M. Baca, E. William Carlson, S. Charles Spencer,
Robert F. Gordon McMillan, Maxwell, Sprague & Wheeler and Wright Ruby A. Theophile, Wheeler for Plaintiffs Respondents.
Opinion of Cali- the State GRODIN, whether question This casepresents J. examination on Indian reservations. may Upon fornia billboards regulate involved, we conclude statutes, history, precedents legislative *4 is federal law. regulatory authority preempted state’s entered after judgments stems from two separate This consolidated appeal Both summary judgment. for the trial court each motion granted plaintiff’s below, issues and involve cases, the same substantially tried raise separately will have a significant resolution of these issues the same defendant. Because to file a brief Indians, of Mission its request effect Band Morongo curiae was amicus granted. (Band) federally recognized is a Band of Mission Indians Morongo Reservation, Indian tribe, Morongo beneficial owner of the and is the Coun- 32,300 land located in Riverside of acres of
consisting approximately a series of was created California. Indian Reservation ty, The Morongo States, one pres- of of the United seven executive orders various Presidents deed, in 1876 statute, one beginning idential one federal proclamation, States declared No. the United in 1948. Under Patent ending benefit use and land . .in trust for sole it will hold the said tracts of “. of Indians, to the laws according of the said Band or Village Morongo California Bernardino the San lies a narrow between
The reservation astride pass a small only portion As result Ranges. and San Jacinto Mountain These rel- development. is located on the suitable economic plain land Los connecting few acres lie to Interstate atively adjacent communities. Southern California desert Angeles popular a main crossed by reservation is highway, In addition to the interstate Railroad, major River Aqueduct, the Colorado line of the Southern Pacific electrical numerous oil transmission natural pipelines, gas pipelines, Los area lines, Angeles the metropolitan transmission all which serve The res- or its residents. to the reservation without benefit any significant that, despite little income so few natural resources yield ervation’s location, Band’s is Many its apparent advantageous economy depressed. its members are and live in unemployed poverty.
For income many years, the Band has derived a of its from major part outdoor The Band’s has deter- advertising membership activities. general mined that the and best use of reservation land to Interstate highest adjacent 10 is for outdoor In a the Southern Cal- advertising. 1977 appraisal report, ifornia Office of the came to the Appraisal Bureau Indian Affairs same conclusion.
Accordingly, Band’s to its tribal coun- general delegated membership cil for an outdoor negotiate agreements business. The Band leased some of this reservation land to non-Indian firms who billboards operated there until 1977. In the Band solicited proposals for further leases from several non-Indian firms including Naegele Outdoor California, Advertising Company Inc. bid was se- (Naegele). Naegele’s lected and a lease agreement followed.
Pursuant to
Code,
title 25 of the United
the
States
Department
(Interior)
Interior
must
such leases before
approve
become effective.
they
(25
415.)
submission,
U.S.C.
Upon
§
was denied because the
approval
lease’s
in
purpose,
the Sacramento area director’s
would have vi
opinion,
olated the Highway
Beautification Act
U.S.C.
et
and Cali
seq.)
§
fornia’s Outdoor
(Bus.
Code,
Act
& Prof.
5200 et
The
Advertising
seq.).
Band
this
appealed
decision and the Interior Board of Indian Affairs re
versed. In its
the
opinion,
board concluded that the
High
Beautification
way
Act do not
to Indian
and
apply
reservations
that Califor
nia’s Outdoor
Act cannot be
Advertising
enforced on tribal Indian lands.
(Administrative Appeal
the Morongo Band Mission Indians Area
of
of
Director,
(Admin.
Sacramento Area
(1979)
During of pendency the Interior on March the Band appeal, entered into an agency agreement1 with This agreement Naegele. provided installation, for the construction, and maintenance of 15 outdoor operation advertising 27, 1978, structures located on reservation land. On June California Department notified Transportation (Department) Naegele its intention to and enforce California’s Outdoor Act. Advertising judicial 1We take notice of the agency agreement approved fact that this was on or about 2, 1984, February by the Bureau of Indian Affairs. and the implication displays Despite Department’s warning Act, erected on Outdoor 16 billboards were would violate the Advertising issued ultimately reservation land. The state outdoor advertising inspector citations for all 16 displays. California, 10, 1978, and acting by
On of the State July People motion for preliminary filed a Department, complaint The was alleged Naegele injunction against Naegele. complaint permanent located to Interstate adjacent control 16 outdoor structures 10 in Riverside These structures were violation County. Code, display per- section 5350 of Business and Professions requiring in violation of various pro- mits. these were situated Additionally displays these of the Outdoor The identified visions Act. Advertising Profes- as a of Business and meaning nuisance within displays public sions Code section 5461. And, on No- 1978. August
The was preliminary injunction granted motion, 6, 1981, summary vember accordance with the Department’s resulted. judgment (Desert), consoli- action of Inc. here Desert Outdoor Advertising, filed on June 1980.
dated with that of the was Department, initially 12, 1980, Desert causes alleged its first amended of December complaint nuisance, interference with pro- of action for unfair intentional competition, interference with eco- prospective economic benefit and spective negligent cause nomic as to the nuisance benefit. demurrer was sustained Naegele’s of action for interference of action. The court dismissed both causes *6 unfair competition for on the Desert’s motion granted summary judgment maintaining In from Naegele cause action. its order the court enjoined with the Out- structures on the reservation without complying to remove all noncomplying door Act. was ordered Advertising Naegele appeal. structures. The enforcement of this was judgment stayed pending can, The we on is whether the Department must answer question appeal Act, billboards erected reser- the Outdoor through Advertising regulate for the beneficial use vation land held in trust the United States subsidiary questions. Band. This us to consider several requires inquiry that Indian clarity, In with enviable Chief Justice Marshall opined, “the laws of within whose boundaries tribes were distinct nations wholly [a (6 Pet.) (Worcester (1832) 31 U.S. Georgia can have no force.” State] however, interim, the United States 501].) In L.Ed. [8 certain lim- view and acknowledged Court has from this Supreme departed “ sovereignty itations tribal For sovereignty. example, upon ‘[t]he at the It exists only Indian tribes retain is of a and limited character. unique ”’ (Rice v. complete sufferance of and is Congress subject defeasance. 3291, 3295], 961, 970, 103 (1983) Rehner S.Ct. U.S. 713 L.Ed.2d [77 313, L.Ed.2d United 435 U.S. States v. Wheeler quoting 303, 313, 1079], italics.) 98 S.Ct. with added
It is that its over the apparent Congress may governance delegate power that, of Indian in the argues reservations to the states. The Department the Highway context outdoor has done so through advertising, Beautification Act. for scenic Beautification Act of 1965 was enacted to provide systems. road beautification of the federal-aid
development highway (23 Title I of the act for control U.S.C. contains requirements § of outdoor advertising. general, act seeks to eliminate outdoor within advertising displays
660 feet of the edge any system interstate or federal primary highway. end, Toward this the act mandates a 10 cut in federal-aid highway percent funds to state which fails to “effective control” over the any provide 131(b).) erection and (23 maintenance of such U.S.C. displays. § Title 23 131(c) United States Code “effective con- section explains that, trol” means with five content-based none of which specified exceptions case, in this all such shall be banned.2 displays The act achieve clearly that the states will contemplates compliance (23 their inherent and condemnation. U.S.C. powers zoning that, The act 131(d)-(g).) also at the states’ provides option, advertising § bemay within 660 feet of interstate and federal displays permitted highways within areas zoned industrial or commercial under state law. U.S.C. 131(d).) *7 defined, Loosely 2The acceptable categories. act limits the content of such devices to five (1) attractions, (2) they signs prop are: advertising signs advertising scenic sale or lease of located, erty (3) upon displays signs advertising prop which are conducted on the activities located, erty (5) displays signs, signs advertising on which are the distri landmark and signs bution of free coffee conform to standards category to travelers. The 1 are to size, 131(c).) regulating Secretary.” spacing, promulgated by “to be the U.S.C. § etc. Secretary” Highway At the time of the the Act in “the enactment of Beautification Commerce; Secretary Department Transportation was the of of in 1966 created the powers Secretary Transportation. all and and duties under this act were transferred to the of (Pub. (Oct. 931.) L. No. 89-670 80 Stat. Act its Out- through the Beautification California with complies Highway Code, (Bus. 5200 et This act explic- door Act & Prof. Advertising seq.). § of a commercial use that outdoor is itly recognizes advertising legitimate such to roads and and adjacent highways property provides 5226.) The act also (Id., be allowed to exist in business areas.” “should § however, “to the public that it is the of the state promote provides, policy travel, health, welfare, to pro- convenience and enjoyment public safety, beauty the scenic tect the investment such highways, preserve public information in the and to insure that of lands such bordering highways, safely effectively of the is presented interest specific traveling public (Ibid.) . . . .” consonant outdoor advertising
The act then for restrictions provides upon For out- Beautification Act. example, with the the provisions Highway 660 feet within door advertisers must obtain before placing displays permits Code, (Bus. & Prof. interstate and right-of-way primary highways. limited to the this area is 5350.) The content of allowable within displays § (Id., Act. Beautification same as the categories specified by Highway size, and lo- 5405.) involving spacing, certain measures Finally, safety 5403, 5405, 5408.) (Id., cation are imposed. §§ that it enforce may provisions contends because Congress expressly Outdoor Act on Indian reservations Advertising Highway such enforcement to the states delegated hand, Band, that this argue Act. and the on the other Beautification Naegele of the federal law. is misinterpretation lands or reser- (h) of the act “All public
Subdivision provides: of the Inter- to any vations of the United States which are adjacent portion with shall be controlled accordance system System primary promulgated of this section and the national standards provisions clearly expresses to the this Secretary.” According Department, provision include reservations under provisions intention to Indian Congress’s to enforce Act and to states the Beautification give on Indian the act’s reservations. or reservations lands and the Band argue phrase “public
Naegele They Indian reservations. the United not intended to include States” was Board of find in the of the Interior this view support opinion 680.) The board exam- (Admin. 86 Interior Dec. Appeal, supra, Appeals. its am- statute, it ambiguous, interpreted ined the concluded that was it concluded that Congress On this basis in favor of the Indians. biguities *8 to Indian reserva- to Beautification Act not intend did Highway tions. Act is debatable Beautification of the interpretation Highway
The board’s 1913) (E.D. Idaho Irr. Co. (see Valley United States Portneuf-Marsh 601, 603) but not we need 1914) 213 F. (9th Fed. affd. Cir. intended to apply act was that debate Even assuming resolve here. has reservations, follow authorized Congress it does not that to lands. reservations, any on federal of the or indeed act on such enforcement Act, Beautification before the enactment of the years Highway Several advertising adjacent made an to outdoor regulate earlier Congress attempt (72 No. 85-767 Stats. funded Public Law federally to highways. of the similar to those former established standards U.S.C. § This legisla- later act and relied the states for enforcement. similarly upon that federal outdoor ad- tion states which to with agreed provided comply to of 1 bonus percent standards be entitled a one-half vertising would federal lands The section of law to highway applicable this funding. or read: “Whenever of the is located upon Interstate any portion System States, to the Sec- any lands or of the United adjacent public reservations Commerce into such retary may make such enter arrangements reser- with over such lands or agreements agency having jurisdiction ., may vations as be out necessary carry policy any to the national . . to with Secretary such is authorized and directed agency fully cooperate (Id., added.) in this 131(d), of Commerce connection.” italics enforce Thus the 1958 law did not the states clearly grant authority Rather, and reservations. beautification federal lands highway having jurisdic- enforcement was reserved to the federal agencies tion such over lands.
Desert that that not this argues repeat language the fact did act is a transfer enforcement the 1965 clear indication it wished to over the federal agencies lands and reservations” from “public We do lands and states. jurisdiction over such reservations” “having not find this argument persuasive.
The House intent Report summarizing legislative Act to all lands and public Beautification states extends simply h] “[section any States which reservations United are adjacent portion or other System Interstate the same controls system covering primary are U.S. & roads which to this Code subject legislation.” Cong. News, Sess.), added.) italics This sum- (89th Admin. 1st Cong., *9 mary could description indicate that intended to maintain the same enforcement mechanism it had Thus, in the developed 1958 law. the act’s (or “controls”) standards would to all lands and apply public reservations But, of the United States. while the states would enforce these controls on state-owned and on lands private their through zoning and condemnation authority, federal agencies would enforce the controls on federal lands their independent statutory over such authority lands.
Administrative and judicial of the interpretations Beautification Highway Act this view.3 In support of the Interior Secretary promulgated for regulations the issuance of permits outdoor on advertising public lands under the jurisdiction of the (Former Bureau of Land Management. 2921.0-6.)4 C.F.R. These § regulations eifectively the issu- prohibited ance of permits for outdoor which would not have advertising with complied the standards of the Beautification Highway Act.
In the Ninth Circuit these upheld Interior Department regulations a against mounted challenge an outdoor by in Nevada advertising company asserted, which alia, inter that Interior’s to this area regulate had been preempted Beautification Act. (Ryan Outdoor Advertising, (9th Inc. v. 554.) U.S. Cir. 559 F.2d The court noted that Interior’s administer the laws with federal lands dealing both was well established and “almost “The plenary.” fact that Congress has authorized the to set Department Transportation general [federal] standards on outdoor which lands as well as to public private does not continued preempt of the same regulation lands public the Secretary of the Interior. . . . There is no indication simply that [f] Congress intended the Highway Beautification Act the significant altera- tion of a persuasive, (Id., well-established scheme. regulatory ...” at added.) italics addition, recent precedents other contexts establish that congres sional authorization of state on federal regulation will be found property 3The earliest interpretation administrative of the act of which we are aware is a memo opinion randum from the Associate Solicitor for Indian Affairs to the Commissioner of Affairs, Interior, April opinion dated 1967. This is consistent interpretation. with our Although opinion subject concluded that Indian reservations “are regulation [A]ct,” under [Highway it did not address the issue of Beautification] authority to enforce the federally suggest act's owned lands and did not state enforcement by Congress. had been authorized regulations, 4These specifically permits directed toward the issuance of for outdoor ad vertising, disappeared in general reorganization renumbering regulations which occurred in 1981. regulations, The new leasing public which discuss the lands in more terms, general specific (Jan. advertising. Reg. make no mention of outdoor Fed. 19, 1981) 43 seq.) C.F.R. 2920.0-1 et *10 cases, the United a of is explicit. pair where mandate only Congress’s federal statutes whether States Court has considered the Supreme question of subjecting the effect have legislation state control mandating pollution state the regula and within states federal installations activities located of “[bjecause fundamental importance The concluded tion. court that from regulation activities installations and federal shielding principles when and is States, only of state found an authorization regulation mandate,’ ‘specific congres there is congressional extent that ‘a clear ‘clear and of state regulation sional action’ that makes this authorization 167, 179 L.Ed.2d (Hancock (1976) Train 426 U.S. v. unambiguous.’” [48 555, 565, 2006], omitted; EPA State Water Re 96 see also v. S.Ct. fns. 578, 96 426 200 L.Ed. S.Ct. (1976)
sources Control Board U.S. [48 of state 2022].) authorization regu These cases that suggest congressional States for the action on reservation land held in trust United latory clear and similarly beneficial use of Indians should require reservation in the no mandate.5 We discern such mandate unambiguous explicit High Beautification Act. way
Further,
above,
Act
as noted
Beautification
contemplates
Highway
of their inherent
states will achieve
the use
compliance through
of
Yet
owned Indian
powers
tribally
eminent domain.
zoning
(Minnesota
reservation land is not
domain
subject to
of eminent
powers
235,
292];
United
(1939)
States
We therefore if conclude even intended the outdoor ad- *11 the on vertising standards of Act to Indian Highway Beautification reservations, it did not intend be that these standards enforced the Thus, assertion state we the power. reject Department’s that argument the Highway Beautification Act authorizes state of outdoor ad- regulation on vertising Indian reservation lands.
Both the and Desert the act of Department alternatively that argue 15, (Pub. 83-280, 1953 August L. No. 67 589 known Stat. as (commonly 280)) Public Law California confers State of to authority the the en upon force its Outdoor Act on Indian reservation lands. This Advertising position is untenable. section 4 of at 28
Although Public Law codified United States Code section to all appears provide that state laws general application are states,7 effective on within Indian reservations the law has specified not been so construed the federal Bryan courts. v. Itasca County 426 2102], Court, U.S. 373 L.Ed.2d 96 S.Ct. [48 Supreme that reasoning “the intent 4 over primary grant jurisdiction was to (id., civil private litigation reservation state court” at involving Indians 385 p. 719]), L.Ed.2d at concluded not p. [48 that Public Law did give Minnesota the tax the of Indians on a living personal property reservation. More the Ninth Circuit concluded that Public Law recently, 280 does not authorize the enforcement of state laws county controlling the conduct of (Barona games Indian reservations California. bingo Band, Group Capitan Grande (9th etc. Cir. F.2d Duffy any eminent shall. deny person jurisdiction equal . . its of its protection within laws” (§ 1302(8)), immunity could interpreted implicit not be as waiver of the tribes’ from suit. an The court such expression legis- concluded that a waiver an of . . . requires “unequivocal Pueblo, (Santa 115].) supra, p. lative intent. ...” Clara at 436 U.S. at L.Ed.2d 4(a), 1360(a) (1976), “(a) 7Section as codified at 28 United Code provides: States section following jurisdiction Each of States . civil . . listed table shall have over causes of action between or to parties Indians which are which arise in the of Indian Indians areas country jurisdiction listed ... to the same extent such State has over other civil that . . . action, causes general application civil are of those laws of such State . . . that private persons private property or such shall have same force effect within as country they have elsewhere within State . California All Indian . .: .... .... country within the State.” has construed Court . . . 1185.) [section The court noted: “The Supreme civil litigation over only private to mean that states have jurisdiction 4] not a state may Thus Indians in state court. reservation involving [Citation.] 1187- (Id., at pp. laws on the reservation.” general civil/regulatory impose con advances any added.) nor the italics Neither Desert court’s conclu Barona from the we should vincing argument why diverge Outdoor Adver enforcement We therefore conclude that state sion. Law 280.8 Public not authorized Act on Indian reservations is tising has not authorized that Congress For these reasons we determine end This does not of outdoor on Indian reservations. regulation our however. inquiry, under certain circum
The United States Court has observed Supreme activities a state assert over on-reservation may validly stances (New Mexico v. to do so. in the absence of mandate congressional even *12 611, 324, L.Ed.2d (1983) 462 331-332 Mescalero Tribe U.S. Apache [76 a 618-619, 2378, that this is such 2384-2385].) 103 It bemay argued S.Ct. case. 713 L.Ed.2d (1983) 463 U.S.
The
cites Rice v. Rehner
Department
[77
(1977)
961,
3291],
Dept.
Game
Washington
103 S.Ct.
Tribe v.
Puyallup
2616],
Mescalero
667,
Apache
In Rice v. the court found that Congress 713, 732-733 (Rice, for the 463 U.S. supra, [77 state law. application Tribe 961, 978, 3291, 3302].) In v. Apache 103 Mescalero L.Ed.2d S.Ct. the court scrutinized Dept., Jones and Tribe v. Game Puyallup Washington The authority. no to state federal law and discerned intent preempt pertinent situation is different here. quite that, in the area of noted
More than 10 Court years ago, Supreme have become treach- state of tribal regulation enterprises, generalizations supple notice argue Secretary of the Interior’s appears 8The also to that the 1.4, Register 8722 at 30 Federal menting Regulations published 25 Code of section Federal 2, authority 1965), regulatory (July provides independent an for its assertion of basis notice, however, in this “Nothing contained specifically provides: over Indian lands. This Law any way provisions 280].” of [Public notice shall be construed to in alter or limit the merely attempt is an light proviso, Secretary’s directive In of this we are satisfied such, not be enacting 280. As it should interpret Congress to the aims of Public Law Indian lands regulatory over general to endow state with broader construed congressional than mandated enactment. 522 Nonetheless, of decisions analyzing preemption
erous. amid welter context, that “a State reaffirmed recently this Court has unique Supreme under will be without if its is certainly jurisdiction pre-empted (New Mexico, at U.S. supra, familiar . . . .” principles pre-emption 620, See also People 333-334 103 S.Ct. at p. L.Ed.2d at pp. 2386]. [76 687].) 685 P.2d (1984) McCovey Cal.Rptr. 36 Cal.3d [205 Whether fed following. these “familiar is the Among principles” intent. In as matter of legislative eral state law “is a legislation preempts intent, of state is whether the enforcement this . . . the test ... certaining whether by federal legislation, law would conflict with the purposes with a matter interfering an federal or frustrating affirmative purpose (Loma Portal Civic Club v. intentionally left unregulated by Congress.” Airlines, L.Ed.2d American 61 Cal.2d Inc. 548].) P.2d intent Congress’s Beautification Act clearly represents outdoor advertising scheme for design comprehensive regulation In United States. Interior’s to federal
adjacent highways throughout view, entirely unregu to leave Indian reservation lands intended have intended the act’s lated under the act. In our opinion, Congress may so, reserved federal But if it reservations. provisions upon authorities the the act’s responsibility enforcing case, au of state regulatory lands and reservations. either the assertion either in this area would conflict with clearly Congress’s purposes, thority *13 the federal act from control under subjecting enterprises exempt area an regulations to state or inconsistent state by imposing regulation, reserved for federal oversight.9 reason, this authority
For we conclude that the state’s regulatory this in favor of law and the judgment area is the federal preempted by operation of the must be reversed.10 Under 25 enterprise cannot be doubted. supervise 9Interior’s to the at issue here 415(a) only purposes may Code Indian lands be leased for business United States section statutory with this approval Secretary “with of the of the Interior.” In accordance the authorization, leasing to the of Indian Secretary regulations pertinent has issued extensive seq.) 162 lands. C.F.R. et enterprise been en- advertising has amply The record indicates that the Band’s outdoor Department has By contrast couraged approved by and the Bureau of Indian Affairs. here is in advertising displays involved
presented every one the sixteen evidence provisions of violation of substantive state law. between this concurring colleague, we little resemblance respect 10With all to our see due 363], (1981) except 634 for In re Wilson Cal.Rptr. P.2d case 30 Cal.3d [177 in Wilson was extinguishment “whether question The the fact that both involve Indians. to, territory operated right occupy, aboriginal to their Indian title or tribe’s [Pit River] 24.) (Id., pertaining No issue aboriginal hunting rights.” at extinguish the tribe’s reservations, was involved. regulation activity preemption, or of federal must also of unfair competition Desert’s on the judgment complaint be of Business language reversed.11 This action is premised upon in Professions Code 17200 which defines “unfair competition” section that if Naegele’s clude “unlawful” Desert admits any business practice. law, We have conduct is not no unfair competition. forbidden there is the billboards concluded that California law cannot be to regulate applied And, as at issue. even if be construed conduct could somehow Naegele’s law, violative of federal under the theory state court relief injunctive unfair is competition inappropriate.
A similar was raised in Ranch question Kay-Dix Diaz case, farm- In that Cal.App.3d Cal.Rptr. plaintiff migratory 443]. workers an owners from sought injunction defendant ranch prohibiting knowingly aliens. An action unfair employing illegal alleging competition was under former Civil Code section brought 3369. court, while de- farmworkers’ need recognizing protection,
nied relief on the basis that action injunctive federal of the Immigration Naturalization Service would be more efficacious than injunctive relief. “Plaintiffs seek the aid of because the national equity government has breached the commitment national . . . implied by policy. effectual, interests, It is more more orderly, less burdensome to the affected that the national redeem government its commitment. Thus the court (Diaz, 599.) withholds its aid.” equity supra, at p. above,
As discussed it is unclear whether the Beautification Act were intended to to outdoor on Indian favor, reservations at all. Even if this were in Desert’s resolved question however, Interior, we have concluded that rather than the is Department, to enforce appropriate agency the act’s The sound counsel provisions. decision, therefore, mandates state abstention in reliance upon Diaz enforcement this case.
The summary are reversed.12 judgments Bird, J., Kaus, J., Broussard, J., J., Lucas, J., C. and con- Reynoso, curred. 1 initially cross-appeal 1Desert filed a as to its three other causes of action. This cross-
appeal request was dismissed at Desert’s March 1983. grounds 12Because we our preemption, base conclusion on of federal we need not resolve whether, asserts, Naegele against pursuant the issue as the lawsuits it should be dismissed necessary party to Code of Civil Procedure which section 389 on basis that the Band is a joined. cannot be MOSK, in the I concur majority opinion. J. so, however, consistency when I wonder doing appearance about bill- involving control lands in a case
the court defers to of Indian boards, must fishing rights after and hunting traditional holding (In re Wilson in case laws. game control a fish yield involving 363]; but see dis. (1981) 634 P.2d Cal.Rptr. opn. Cal.3d J., Newman, J., Mosk, ff.) at matter, and to provide offer a in the instant To more rationale convincing law, over- in the take this opportunity we should recognizable pattern rule Wilson. for a Transportation rehearing petition respondent 10, 1985, to read as printed denied was modified July
was the opinion above.