Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

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74 NCHRP LRD 76 M. OPERATION AND MAINTENANCE OF HIGHWAYS ON INDIAN LANDS 1. State Enforcement of Highway Laws State enforcement of traffic and motor vehicle statutes was previously discussed at section C.5.a. of this digest, entitled “State Traffic and Motor Vehicle Statutes.” 2. Jurisdictional Issues Carrying Out Federal Programs a. Sign Control on Indian Lands Under the Highway Beautification Act The Highway Beautification Act (HBA)839 at 23 U.S.C. § 131(a) provides: “The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Inter- state System and the primary system should be controlled in order to protect the safety and recreational value of pub- lic travel, and to preserve natural beauty.” The focus of the HBA is the segregation of signs to areas of similar land use (i.e., commercial and/or industrial areas) so that areas not having commercial or industrial character are protected for safety, recreational value, and preservation of natural beauty. In order to accomplish this purpose, the states, using their police power and their power of eminent domain,840 were re- quired to enact laws that would provide for “effective control” 839 Pub. L. No. 98-285, 79 Stat. 1028 (1965) (codified at 23 U.S.C. §131). 840 23 U.S.C. § 131(g) provides, in part, as follows: Just compensation shall be paid upon the removal of any out- door advertising sign, display or device lawfully erected under State law and not permitted under subsection (c) of this section whether or not removed pursuant to or because of this section…. Such compensation shall be paid for the following: (A) The taking from the owner of such sign, dis- play, or device of all right, title, leasehold, and interest in such sign, display, or device; and (B) the taking from the owner of the real property on which the sign, display, or device is located, of the right to erect and maintain such signs, dis- plays, and devices thereon. In addition, § 401 of the Act, 79 Stat. 1033, provided, “Nothing in this Act or the amendments made by this Act shall be construed to authorize private property to be taken or the reasonable and existing use restricted by such taking without just compensation as provided in this Act.” In November 1966, Acting Attorney General Ramsey Clark issued his opinion “that section 131 is to read as requiring each State to afford just compensation as a condition of avoiding the 10% reduction of subsection (b).” (42 Op. Atty. Gen. No. 26 (1966)). See also Roger A. Cunningham, Billboard Control Under the High- way Beautification Act of 1965, 71 Mich. L. Rev. 1295, 1309–26 (1973). tribes, although substantial, did not provide a sufficiently close “nexus” to employment to support application of the TERO to FMC, citing Cardin v. De La Cruz,834 and pointing out that Car- din contained no explicit nexus requirement.835 • Duncan Energy Co. v. Three Affiliated Tribes of the Ft. Ber- thold Reservation 836: This case addressed the jurisdiction of the tribe to apply its TERO Ordinance (that required an Indian employment preference and a one percent tax) on an energy company operating oil and gas wells on the reservation pursu- ant to a lease with a non-Indian landowner. In reviewing the lower court’s decision holding that the tribe could not enforce the TERO ordinance on the energy company, the Eighth Circuit Court of Appeals directed the lower court to consider whether the second Montana exception was applicable to the case (i.e., whether the conduct at issue threatened or had some direct ef- fect on the political integrity, economic security, or the health and welfare of the tribe). Noting that the tribe would have a “heavy burden” to show that the second Montana exception was applicable, the court of appeals remanded the case for an analy- sis of the specific facts. • State of Montana Department of Transportation v. King 837: In this case, the Montana Department of Transportation sued the tribe arguing that the tribe could not impose the require- ments of its TERO ordinance on work that the DOT (rather than its contractor) was doing on the right-of-way. The tribe’s TERO ordinance required an Indian employment preference and a two-percent tax. A State of Montana law required private contractors to comply with Indian employment preference, but that law did not apply to the State. The court found that the state’s easement did not create a consensual relationship with the tribe and that the DOT’s conduct did not threaten or have a direct effect on the political integrity, economic security, or health and welfare of the tribe (i.e., neither of the Montana ex- ceptions applied) and so the tribe could not impose its TERO ordinance on the state DOT’s work. The court, however, also stated the following: Courts are often poor forums for resolving difficulties between Indi- an tribes and States. While we are parsing the nuances of jurisdiction and immunity, poverty continues unabated on the reservation, and the State’s highways are left unrepaired. However, solutions to these problems rest with the political branches of each sovereign. Montana has already expressed concern for the welfare of the Community by requiring private contractors to comply with Indian preferences policies for work done on the Reservation. See Mont. Code Ann. S 18-1-110(1) (1997). We can but express the hope that cooperation between these two governments will continue and that they will work together to solve these pressing problems without further judicial in- tervention.838 834 671 F.2d 363 (9th Cir. 1982). 835 Shoshone-Bannock Tribes, 905 F.2d at 1315. See, however, Atkinson Trading Co. v. Shirley, 532 U.S. 645, 121 S. Ct. 1825, 149 L. Ed. 2d 889 (2001), in which the Supreme Court discusses the nexus requirement. 836 27 F.3d 1294 (8th Cir. 1994). 837 191 F.3d 1108 (9th Cir. filed Sept. 9, 1999). 838 Id. at 1115.

NCHRP LRD 76 75 must comply or become subject to a penalty equal to 10 per- cent of their Federal-aid highway funds.843 The dilemma posed for enforcement of the HBA—and state laws enacted pursuant to the Act to provide for “effective con- trol”—is found at Subsection 131(h) of Title 23, U.S.C., which remains unchanged from its original enactment by Congress in 1965. It reads: “(h) All public lands or reservations of the United States which are adjacent to any portion of the Interstate Sys- tem and the primary system shall be controlled in accordance with the provisions of this section and the national standards promulgated by the Secretary.”844 Subsection 131(h) is written in the passive voice, making it unclear whether states or the federal government have responsibility and authority to enforce it. In addition, 131(h) is not clear as to whether it applies to Indian reservations. The legislative history of Subsection 131(h) is of little help in clarifying these issues. The language originated in the Senate bill (S. 2084) and was revised in House Report 1084 to add the phrases (1) “of the United States,” and (2) that the national stan- dards be “promulgated by the Secretary.” There were no floor amendments or discussion during debate in either the Senate or the House and no executive communications relative to this subsection. The only statement relating to Subsection 131(h) ap- pears in the House Report, and makes no reference to who has the responsibility to enforce the law on public lands or reserva- tions, or whether such lands include Indian reservations: This section simply extends to all public lands and reservations of the United States which are adjacent to any portion of the Inter- state System or primary system the same controls covering other roads which are subject to this legislation. The committee expects in the case where portions of public lands or reservations are leased for commercial operations that such portions will have the same exception from control as are given by this legislation to ar- eas zoned or used for commercial or industrial purposes in a State. Researchers have concluded that the failure of Congress to expressly cover Indian reservations and the lack of legislative history indicating such coverage have left the Act open to vary- ing interpretations by courts and administrative agencies as to whether the HBA applies to Indian country.845 It is also unclear 843 23 U.S.C. § 131(b): Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary deter- mines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary sys- tem of outdoor advertising signs, displays, and devices…shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under section 104 of this title, until such time as such State shall provide for such effective control…. 844 79 Stat. 1029 (23 U.S.C. § 131(h)). See South Dakota v. Gold- schmidt, 635 F.2d 698 (8th Cir. 1980), where the Act was held con- stitutional; See also Vermont v. Brinegar, 379 F. Supp. 606 (D.C. Vt. 1974), upholding 10 percent reduction in federal highway aid. 845 Richard O. Jones, Application Of Outdoor Advertising Controls On Indian Land, LRD No. 41, NCHRP, Transportation Research Board of Washington, D.C., 1998. This section provides a synopsis of the information contained in LRD No. 41, see that docu- ment for a more detailed discussion of 23 U.S.C. § 131(h), federal agency interpretations and /positions, and case law. of outdoor advertising as described in federal law841 and as set out in agreements to be entered into with the Secretary of Commerce (now with the Secretary of Transportation).842 While legally the states can choose not to provide for effec- tive control of outdoor advertising, as a practical matter they 841 23 U.S.C. § 131(c) provides, in part, that: Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, …if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their mes- sage being read from such main traveled way, shall, pursuant to this section be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary here- under, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this sec- tion, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, (3) signs, dis- plays, and devices, including those which may be changed at reasonable intervals by electronic process or by remote con- trol, advertising activities conducted on the property on which they are located, (4) signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be con- sistent with the purposes of this section, and (5) signs, dis- plays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection the term “free coffee” shall include coffee for which a donation may be made, but is not required. 842 23 U.S.C. § 131(d) provides, in part, that: In order to promote the reasonable, orderly and effective dis- play of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary, may be erected and maintained…within areas adjacent to the…[highway]…which are zoned indus- trial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be deter- mined by agreement between the several States and the Secre- tary. The States shall have full authority under their own zon- ing laws to zone areas for commercial or industrial purposes, and the actions of the states in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreements in the zoned commercial and industrial areas within the geographical jurisdiction of such authority… (emphasis added).

76 NCHRP LRD 76 in 1986, to provide that “effective control” of outdoor ad- vertising on Indian reservations would be a federal respon- sibility.850 Later, the U.S. Senate unanimously agreed to this approach in the 99th Congress (S. 2405), but Congress failed to make it law in passing STURAA. In 2006, FHWA issued a non-regulatory supplement ad- dressing this question which stated as follows: OUTDOOR ADVERTISING CONTROL ON INDIAN LANDS (23 CFR 750.704 AND 750.705).  Title 23 U.S.C. 131(h) does not delegate to either FHWA or DOT the explicit authority to implement the Highway Beautification Act of 1965 on Indian Reservation Lands. In those limited instances where a State has indicated that it does have jurisdiction in such matters, FHWA expects the State to control outdoor advertising signs on Indian Lands. If a State does not have such jurisdiction, a legal opinion, preferably from the State Attorney General, should be provided to FHWA. The matter of regulation and enforcement of the Act’s provisions on Indian Lands in those States Department must be reversed (emphasis added). Id. at 522, 213 Cal. Rptr. at 254-55, 698 P.2d at 158. Consider also, these later cases discussing the applicability of the HBA in Indian country: Blunk v. Arizona DOT, 177 F.3d 879 (9th Cir. filed May 21, 1999): This was a suit to challenge the right of the State of Arizona to regulate Plaintiff Blunk’s commercial use of non- reservation fee land owned by the Navajo Nation. He had a permit from the tribe to erect billboards on the land but failed to obtain a state permit. The state told Blunk he would have to take down the billboards and apply for a permit. Blunk refused and sued, seeking declaratory judgment that the state’s attempted regulation violated federal preemption and Navajo sovereignty. The court held: In sum, the requirements for the Navajo Fee Land to be “Indian country” are not met in this case. Because the land is not “Indian country,” the ADOT is not preempted by the fed- eral preemption prong of the Indian preemption doctrine from regulating Blunk’s erection of billboards on the land. We need not consider the White Mountain balancing test…. Finally, our holding that the state may impose regulations on a non-Indian’s use of the Navajo Fee Land is consistent with Justice Steven’s opinion in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 106 L. Ed. 2d 343, 109 S. Ct. 2994 (1989), a case involving zoning of fee lands owned by nonmembers of the Tribe’s reservation…. Shivwits Band of Paiute Indians v. Utah, 428 F.3d 966 (10th Cir. filed Nov. 9, 2005): The 10th Circuit Court of Appeals held that the State of Utah could not regulate outdoor advertising on off-reservation tribal trust land. It followed the California Supreme Court’s reasoning in Nae- gele and held that even if Congress meant to enforce HBA on tribal trust land it did not mean for states to enforce outdoor advertising laws on this type of land. The court found that the State could not enforce its outdoor advertising law on off-reservation trust land because the state law was federally preempted because the interests of the tribe and fed- eral government were stronger than the state’s interest in enforcing the law. 850 A memorandum dated March 7, 1986, from the FHWA Chief Counsel to the Federal Highway Administrator advised that “FHWA has long recognized that the requirement of 23 U.S.C. 131(h) that outdoor advertising on public lands and reservations be controlled was unclear with respect to enforcement,” and advised that pending legisla- tion to amend 131(h) would vest authority to control outdoor advertis- ing on Indian lands in the federal agency with jurisdiction of those lands. which governmental entities have jurisdiction to enforce the Act on public lands or reservations. In most instances federal laws of general applicability apply to all persons throughout the United States, including Indians and non-Indians in Indian country.846 However, the HBA requires states to create state laws to provide for “effective control’ and leaves enforcement up to the states on the basis of their inherent police power and eminent domain authority and state eminent domain power on Indian reserva- tions is lacking. 847 In 1976, FHWA, the federal agency charged with imple- menting the HBA, concluded that because the Act does not give either FHWA or the Department of the Interior (DOI) explicit authority to implement the Act on Indian reserva- tions, the HBA is not applicable on Indian reservations. At- tempts to obtain control through DOI, using its general reg- ulatory powers, proved unsuccessful. The BIA followed the 1979 ruling of the Interior Board of Indian Appeals (IBIA), which held that Congress did not intend to cover Indian res- ervations in the HBA and that the states could not control outdoor advertising on Indian reservations without express authority.848 The California Supreme Court, in a 1985 deci- sion, found the IBIA interpretation “debatable,” but found it unnecessary to resolve that issue because “it does not follow that Congress has authorized state enforcement of the act on such reservations.”849 FHWA attempted to amend the HBA 846 See section C.2 of this digest, entitled “Civil Jurisdiction-Fed- eral Jurisdiction in Indian Country”. 847 See section H.3 of this digest, entitled “State Eminent Domain Powers and Indian Land.” 848 The IBIA is an appellate review body that has delegated authority to issue final decisions for the Department of the Interior on Indian matters. See Appeal of the Morongo Band of Mission Indians v. Area Director, BIA, 7 IBIA 299, 86 I.D. 680 (Dec. 13, 1979), which held that “Absent clear congressional license to the states to control out- door advertising on Indian reservations, such an intrusion by the states into ‘the right of reservation Indians to make their own laws and be ruled by them’ is without sanction.” Id. at 687. 849 See People v. Naegele Outdoor Adver. Co. of Cal., 38 Cal. 3d 509, 517, 213 Cal. Rptr. 247, 251, 698 P.2d 150, 154 (1985). The court held: It appears logically imperative that, had Congress intended the states to enforce the provisions of the Highway Beautifi- cation Act against nonconforming advertising displays located on Indian tribal lands, it would have empowered the relevant state authorities to condemn reservation lands, to regulate tribal land use, and to sue Indian tribes. No such authorization can be found in the Highway Beautification Act. We therefore conclude that, even if Congress intended the outdoor advertising standards of the [HBA] to apply on Indian reservations, it did not intend that these standards be enforced through assertion of state power. Thus, we reject the Department’s argument that the [HBA] authorizes state regu- lation of outdoor advertising on Indian reservation lands….Id. at 520, 213 Cal. Rptr. at 253, 698 P.2d at 156. ( In our opinion, Congress may have intended the act’s provisions to apply on Indian reservations. But if so, it reserved to federal authori- ties the responsibility for enforcing the act’s provisions upon federal lands and reservations. For this reason, we conclude that the state’s regulatory authority in this area is preempted by the operation of federal law and the judgment in favor of the

NCHRP LRD 76 77 gressional enactment, accepted by the States where appropriate, and consented to by the Indian tribes.853 c. Application of Preemption Provisions of HMTA to Indian Tribes The Hazardous Materials Transportation Act (HMTA)854 provides for the regulation of the transportation of hazardous materials. Section 5125(a), with certain exceptions, provides for the preemption of state, local, and tribal requirements that are inconsistent with federal laws, regulations, and directives as fol- lows: [A] requirement of a State, political subdivision of a State, or Indian tribe is preempted if—(1) complying with [such] a requirement and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not pos- sible, or (2) the requirement…as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security. Procedures for securing decisions on preemption are set forth in Section 5125(d), which provides, in part: (1) A person (including a State, political subdivision of a State, or Indian tribe) directly affected by [such] a requirement…may apply to the Secretary, as provided by regulations prescribed by the Secretary, for a decision on whether the requirement is pre- empted…. The Secretary shall publish notice of the application in the Federal Register. The Secretary shall issue a decision on an application for a determination within 180 days after the date of the publication of the notice of having received such application, or the Secretary shall publish a statement in the Federal Register of the rea- son why the Secretary’s decision on the application is delayed, along with an estimate of the additional time necessary before the decision is made. After notice is published, an applicant may not seek judicial relief on the same or substantially the same issue until the Secretary takes final action on the application or until 180 days after the appli- cation is filed, whichever occurs first. * * * (3) Subsection (a) of this section does not prevent a State, political subdivision of a State, or Indian tribe, or another person directly af- fected by a requirement, from seeking a decision on preemption from a court of competent jurisdiction instead of applying to the Secretary under paragraph (1) of this subsection. A tribal ordinance to control shipment of nuclear ma- terials was held preempted under HMTA and enjoined in Northern States Power Company v. The Prairie Island Mde- wakanton Sioux Indian Community.855 The tribal nuclear radiation control ordinance required transporters to ob- tain a tribal license for each shipment of nuclear materials across reservation land. The ordinance also required that license applications be filed 180 days in advance of each shipment, accompanied by a fee of $1,000. The tribal coun- 853 Federal Motor Carrier Safety Administration, Section § 390.3: General Applicability. Guidance And Q & A. available at: https://www.fmcsa.dot.gov/regulations/title49/part/390 (accessed June 24, 2018). 854 49 U.S.C. § 5125 (formerly 49 U.S.C. § 1811). 855 991 F.2d 458 (8th Cir. 1993). indicating they do not have such jurisdiction will be coordinated by the Washington Headquarters Office of Real Estate Services (HEPR) with the Bureau of Indian Affairs.851 b. Application of the Federal Motor Carrier Safety Regulations (FMCSRs)852 to Indian Tribes The Federal Motor Carrier Safety Administration provides the following guidance related to Indian tribes: Question 12: What is the applicability of the FMCSRs to school bus operations performed by Indian Tribal Governments? Guidance:  Transportation performed by the Federal Government, States, or political subdivisions of a State is generally excepted from the FMCSRs. This general exception includes Indian Tribal Govern- ments, which for purposes of §390.3(f) are equivalent to a State gov- ernmental entity. When a driver is employed and a bus is operated by the governmental entity, the operation would not be subject to the FMCSRs, with the following exceptions: The requirements of  part 383 as they pertain to commercial driver licensing standards are ap- plicable to every driver operating a CMV, and the accident report retention requirements of part 390 are applicable when the govern- mental entity is performing interstate charter transportation of pas- sengers. Question 20: Do the FMCSRs apply to Indian Tribal Governments? Guidance: Under  §390.3(f)(2), transportation performed by the Federal Government, States, or political subdivisions of a State is generally exempt from the FMCSRs. Indian Tribal Governments are considered equivalent to a State governmental entity for purposes of this exemption. Thus, when a driver is employed by and is operat- ing a CMV owned by a governmental entity, neither the driver, the vehicle, nor the entity is subject to the FMCSRs, with the following exceptions: (1) The requirements of part 383 relating to CMV driver licensing standards; (2) The drug testing requirements in part 382; (3) Alcohol testing when an employee is performing, about to per- form, or just performed safety-sensitive functions. For the purposes of alcohol testing, safety-sensitive functions are defined in §382.107 as any of those on-duty functions set forth in  §395.2  On-Duty time, paragraphs (1) through (6), (generally, driving and related activities) and; (4) The accident report retention requirements of  §390.15  are applicable when the governmental entity is performing interstate charter transportation of passengers. Question 23: Is transportation within the boundaries of a State be- tween a place in an Indian Reservation and a place outside such res- ervation interstate commerce? Guidance:  No, such transportation is considered to be intrastate commerce. An Indian reservation is geographically located within the area of a State. Enforcement on Indian reservations is inherently Federal, unless such authority has been granted to the States by Con- 851 FHWA, Office Of Planning, Environment & Realty, Fed- eral-Aid Policy Guide, Non-Regulatory Supplement, February 16, 2006, Outdoor Advertising Control On Indian Lands, avail- able at: https://www.fhwa.dot.gov/real_estate/policy_guidance/non- regulatory_supplements/0750gsu1.cfm (accessed July 7, 2018). 852 See 49 C.F.R. Parts 300-399.