P. ex rel. etc. v. Huber 9/2518 CA1/4 Case Details ( 2018 )

Filed 9/25/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE ex rel. XAVIER
BECERRA, as Attorney General, etc.,
Plaintiff and Respondent, A144214
v. (Humboldt County
ARDITH HUBER, Super. Ct. No. DR110232)
Defendant and Appellant.
I. INTRODUCTION
This appeal is from a summary adjudication order and permanent injunction
entered in an enforcement action by the Attorney General on behalf of the People of the
State of California against Ardith Huber, a member of the Wiyot Band of Indians. Huber
owns and operates a tobacco smokeshop on the Table Bluff Rancheria, an area where the
Wiyots live just outside of Crescent City, in Humboldt County.
The Attorney General’s complaint alleges a claim for violation of the Unfair
Competition Law, Business and Professions Code section 17200 et sequitur (the UCL)
and cites as predicate “unlawful acts” violations of three statutes applicable to cigarette
sales and marketing, the Tax Stamp Act (Rev. & Tax. Code, § 30161), the Directory Act
(Rev. & Tax. Code, § 30165.1, subd. (e)(2)), and the Fire Safety Act (Health & Saf.
Code, § 14951, subd. (a)). He also pleads, as separate claims, violations of the Directory
1
Act and the Fire Safety Act. The trial court granted summary adjudication to the to the
People, denied it to Huber, and entered a permanent injunction on all three claims.
Huber’s primary argument on appeal is an attack on subject matter jurisdiction.
She contends that, under a federal statute granting California courts plenary criminal
jurisdiction but limited civil jurisdiction over cases arising on Indian reservations, the
trial court lacked power to proceed on any of the three claims in this case. She also
argues that, under the doctrine of Indian preemption, which limits the reach of state law
to conduct by Indians on Indian reservations, all the statutes the Attorney General seeks
to enforce here are preempted by paramount federal authority.
We reverse in part, agreeing the court lacked subject matter jurisdiction to proceed
on the UCL claim, but in all other respects affirm.
II. BACKGROUND
A. Huber Enterprises and the Table Bluff Rancheria
Huber runs a sole proprietorship out of her home called Huber Enterprises, selling
cigarettes at retail and wholesale. Although Huber once sold other brands of cigarettes,
after 2007 she has sold exclusively Native American brands, which she describes as
“cigarettes manufactured by Indians on Indian lands, . . . shipped and sold through Indian
and tribally-owned distributors to Indian and tribally-owned retail smokeshops located on
Indian lands.”
The retail component of Huber’s enterprise is onsite business. Customers include
tribe members and nonmembers who come to the Table Bluff Rancheria to make
purchases there. The wholesale component of the enterprise is with “over two dozen
Indian smokeshops owned either by Indian tribes or [i]ndividual tribal members and
operated within [other] . . . recognized Indian reservation[s].” Deliveries are made to
these “inter-tribal” customers by truck, using California highways.
Huber Enterprises is licensed to do business pursuant to the Wiyot Tribal Business
Code and the Wiyot Tribal Tobacco Licensing Ordinance (Ordinance No. 01-10).
Ordinance No. 01-10 was promulgated June 14, 2010, for purposes of, inter alia,
“promot[ing] tribal economic development,” “regulat[ing] and licens[ing] the
2
manufacture, distribution, wholesaling, and retailing of tobacco products,”
“complement[ing] and enforc[ing] federal standards relating to or prohibiting the sale,
distribution, possession, exposure to, access to, advertising and promotion of, and use of
tobacco products,” and “encourag[ing] and foster[ing] traditions and culture of the
Tribe.”
Ordinance No. 01-10 requires licensees to pay—and Huber Enterprises does
pay—a quarterly excise tax administered through a tribal tax stamp system. Taxes
collected in this manner are deposited into a dedicated Tribal Tobacco Fund, earmarked
solely for the expenses of “[t]obacco-related school and community health education
programs,” “[s]moking and tobacco-use prevention measures,” and “[a]ssistance to tribal
and community members for cessation of smoking and tobacco use.”
There is no dispute in this case that today the Wiyot Band of Indians is a federally
recognized tribe and that the Table Bluff Rancheria falls within the broad definition of
“Indian country” under federal law, as do individual allotments of land to enrolled tribe
members such as Huber. (18 U.S.C. § 1151; see Oklahoma Tax Com. v. Sac & Fox
Nation (1993) 508 U.S. 114, 123 [“Indian country” encompasses “formal and informal
reservations, dependent Indian communities, and Indian allotments, whether restricted or
held in trust by the United States”].)1
1
Federally protected territory in California falling within the federal definition of
“Indian country” has a unique history that differs in some respects from the history of
federally protected Indian lands in other states, where in many cases treaties with tribes
determined the boundaries of tribal territory. (See Cohen, Handbook of Federal Indian
Law (2012 ed.) § 3.04[2][a], p. 185 (Cohen).) Early in the 20th century, the United
States sought to improve “the landless, homeless or penurious state of many California
Indians” by purchasing numerous small tracts of land known as “ ‘[r]ancherias.’ ”
(Williams v. Gover (9th Cir. 2007) 490 F.3d 785, 787.) The United States holds these
rancheria lands in trust for resident Indians, controlling the land pursuant to a “special
fiduciary duty owed by the United States to the Indian people.” (Table Bluff Band of
Indians v. Andrus (N.D.Cal. 1981) 532 F.Supp. 255, 258.) A federal statute passed in
1958 known as the California Rancheria Act (Pub.L. No. 85-671 (Aug. 18, 1958) 72 Stat.
619-621), amended in 1964 (Pub.L. No. 88-419 (Aug. 11, 1964) 78 Stat. 390-391) (the
3
B. The Directory Act, the Fire Safety Act, and the Tax Stamp Act
At the center of the appeal are three sets of statutes governing different aspects of
the sale and distribution of cigarettes in California. In order to provide some general
legal context and set the stage for the specific issues framed by the appeal, we begin by
summarizing these statutes.
First, California, along with many other states, has enacted legislation designed to
implement the provisions of the 1998 Tobacco Master Settlement Agreement (the
MSA).2 Under the pertinent California statutes, cigarettes sold in this state must be
produced by manufacturers who either (a) have signed the MSA and agreed to pay
substantial sums to the state to cover, among other things, health care costs generated by
tobacco use among Californians, or (b) in lieu of signing the MSA, have agreed to pay
sufficient funds into a reserve fund in escrow to guarantee a source of compensation
should liability arise. (Health & Saf. Code, §§ 104555-104557.) Under the Directory
Act, the Attorney General maintains a published list of all cigarette manufacturers who
have annually certified their compliance with the requirements of the MSA or the
alternative escrow funding requirements. (Rev. & Tax. Code, § 30165.1, subds. (c) &
(d).) It is categorically illegal for any “person” to “sell, offer, or possess for sale in this
state, ship or otherwise distribute into or within this state” cigarettes that are not in
Rancheria Act) established a process for terminating the trust relationship between the
United States and the Indian people residing on 41 enumerated California rancherias and
reservations. (Table Bluff, at p. 258.) A plan of termination for the Table Bluff
Rancheria was prepared under the Rancheria Act, but because federal authorities failed to
carry out various prerequisites to termination, the plan never took effect. (Id. at p. 259.)
Throughout this opinion, we will occasionally use the term “reservation,” equating it with
rancheria, since there is no dispute that the Table Bluff Rancheria qualifies as “Indian
country,” and since many of the pertinent United States Supreme Court cases arose in
states where tribes live on reservations.
2
See Annotation, Validity, Construction, Application, and Effect of Master
Settlement Agreement (MSA) Between Tobacco Companies and Various States, and
State Statutes Implementing Agreement; Use and Distribution of MSA Proceeds (2007)
25 A.L.R.6th 435, section 2 (summarizing mechanics of MSA and state statutes
implementing its provisions).
4
compliance with the Directory Act. (Id., § 30165.1, subd. (e)(2); see Health & Saf. Code,
§ 104555.)
Second, under the Fire Safety Act, any manufacturer of cigarettes sold in
California must meet specified testing, performance, and packaging standards established
for the purpose of minimizing the fire hazards caused by cigarettes. (Health & Saf. Code,
§§ 14951, subd. (a)(1)-(3), 14952-14954.) This statute provides that all cigarettes sold in
this state must, among other things, be packaged in a specified manner and certified with
the State Fire Marshal as compliant with these safety standards. (Id., § 14951, subd. (a).)
It is categorically illegal for any “person” to “sell, offer, or possess for sale in this state
cigarettes” that do not comply with the Fire Safety Act. (Ibid.)
Third, to reduce smoking and fund healthcare research related to diseases caused
by smoking (Rev. & Tax. Code, §§ 30131 & 30121 et seq.), California imposes excise
taxes that “shall be paid by the user or consumer” (id., § 30107) but that must be
collected by distributors at the time of sale and remitted by them to the state (id.,
§ 30108). Compliance with this remittance obligation is administered under the Tax
Stamp Act, which requires all cigarette packages sold in California to have tax stamps
affixed to them. (Rev. & Tax. Code, § 30161.) Subject to exceptions, it is illegal for any
“person” to “knowingly possess[], or keep[], store[], or retain[] for the purpose of sale, or
sell[] or offer[] to sell, any package of cigarettes to which there is not affixed” a tax
stamp required by the Tax Stamp Act. (Rev. & Tax. Code, § 30474, subd. (a).)
C. Procedural History
After sending two cease-and-desist letters charging Huber with violating various
provisions of state law governing distribution and sales of cigarettes, the Attorney
General filed this action in Humboldt County in March 2011. The complaint pleaded
three causes of action. The first alleged violation of the Directory Act. The second
alleged violation of the Fire Safety Act. And the third alleged violation of the UCL,
specifying violations of the Tax Stamp Act, the Directory Act, and the Fire Safety Act as
predicate “unlawful acts” warranting entry of a permanent injunction and an award of
civil penalties.
5
Specifically, it was alleged that Huber Enterprises sold cigarettes in packages
without an affixed tax stamp and failed to collect and remit excise taxes, all in violation
of the Tax Stamp Act (Rev. & Tax. Code, § 30161); sold cigarettes purchased from
manufacturers not listed by the Attorney General on the statewide tobacco directory, in
violation of the Directory Act (id, § 30165.1, subd. (e)(2)); and sold cigarettes in
packaging that does not meet required safety standards, in violation of the Fire Safety Act
(Health & Saf. Code, § 14951, subd. (a)).3
On cross motions for summary adjudication, the trial court denied Huber’s motion;
granted the Attorney General’s motion in part, leaving open triable issues concerning
civil penalties; and entered a permanent injunction. By its terms, the injunction applies
only to sales to nonmembers of the Wiyot Tribe and permits Huber to continue operating
so long as she complies with the Directory Act, the Fire Safety Act, and the Tax Stamp
Act. This appeal followed.
III. DISCUSSION
Only the grant of the permanent injunction is on appeal. “ ‘A permanent
injunction is a determination on the merits that a plaintiff has prevailed on a cause of
action . . . against a defendant and that equitable relief is appropriate. A permanent
injunction . . . is a final judgment on the merits.’ ” (Dawson v. East Side Union High
School Dist. (1994) 28 Cal.App.4th 998, 1041.) Normally, “[t]he trial court’s decision to
grant a permanent injunction rests within its sound discretion and will not be disturbed on
appeal absent a showing of a clear abuse of discretion.” (Shapiro v. San Diego City
Council (2002) 96 Cal.App.4th 904, 912.) But where an appeal attacks the legal premises
of a permanent injunction on undisputed ultimate facts—as is the case here—our review
is de novo. (Dawson, at p. 1041.)
Because the order granting summary adjudication in favor of the Attorney General
and denying it to Huber supplies the basis for the permanent injunction, we must in turn
3
There is no standalone cause of action for violation of the Tax Stamp Act.
6
review whether summary adjudication was correctly granted as to each of the three
causes of action. We review de novo an order granting summary judgment or summary
adjudication. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) “As a
practical matter, ‘ “we assume the role of a trial court and apply the same rules and
standards which govern a trial court’s determination of a motion for summary
judgment.” ’ ” (Swigart v. Bruno (2017) 13 Cal.App.5th 529, 536.) A summary
adjudication motion “proceed[s] in all procedural respects as a motion for summary
judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)
A. Subject Matter Jurisdiction
The United States Supreme Court “first addressed the sovereign status of [Indian]
tribes in three opinions known today as the Marshall Trilogy after their author, Chief
Justice John Marshall. (See Worcester v. The State of Georgia (1832) 31 U.S. 515 . . . ;
Cherokee Nation v. Georgia (1831) 30 U.S. 1 . . . (Cherokee Nation); Johnson v.
M’Intosh (1823) 21 U.S. 543 . . . .) Broadly speaking, these cases established that ‘states
lack jurisdiction in Indian country, that tribes are “domestic dependent nations” to whom
the United States owes a fiduciary obligation, and that Indian affairs are the exclusive
province of the federal government.’ ” (People v. Miami Nation Enterprises (2016)
2 Cal.5th 222, 233-234.) Within this dependency relationship as Chief Justice Marshall
conceived of it, relations between tribes and individual states are governed exclusively by
the United States, and thus, absent express congressional authorization by treaty or
legislation, state law does not extend to Indian territory. (See Worcester v. The State of
Georgia, supra, 31 U.S. at p. 561.) From this basic principle evolved a closely related
corollary—that absent congressional authorization, state courts lack subject matter
jurisdiction to adjudicate cases arising on Indian lands. (See Williams v. United States
(1946) 327 U.S. 711, 714 & fn. 10 [criminal jurisdiction]; Williams v. Lee (1959)
358 U.S. 217, 220, 222-223 (Williams) [civil jurisdiction].)
Huber’s main contention here is that California courts have no subject matter
jurisdiction over this case because it involves her on-reservation activities as a member of
the Wiyot Tribe. Central to her argument is a federal statute known as Public Law 280
7
(Pub.L. No. 83-280 (Aug. 15, 1953) 67 Stat. 588-590) by which Congress granted six
states, one of which is California, plenary criminal jurisdiction over “offenses committed
by or against Indians” within Indian country (18 U.S.C. § 1162(a); see People v.
McCovey (1980) 36 Cal.3d 517, 535) and limited civil jurisdiction over “causes of action
between Indians or to which Indians are parties” in cases arising in Indian country
(28 U.S.C. § 1360(a); see Boisclair v. Superior Court (1990) 51 Cal.3d 1140, 1147, fn. 4
(Boisclair); People ex rel. Dept. of Transportation v. Naegele Outdoor Advertising Co.
(1985) 38 Cal.3d 509, 520 (Naegele); Middletown Rancheria v. Workers’ Compensation
Appeals Board (1998) 60 Cal.App.4th 1340, 1348 (Middletown Rancheria)).4
4
Section 4 of Public Law 280, 28 U.S.C. § 1360, provides as follows
“(a) Each of the States listed in the following table shall have jurisdiction over
civil causes of action between Indians or to which Indians are parties which arise in the
areas of Indian country listed opposite the name of the State to the same extent that such
State has jurisdiction over other civil causes of action, and those civil laws of such State
that are of general application to private persons or private property shall have the same
force and effect within such Indian country as they have elsewhere within the State:
“State of Indian country affected
[¶ . . . ¶]
California……………………...…All Indian country within the State.
[¶ . . . ¶]
“(b) Nothing in this section shall authorize the alienation, encumbrance, or
taxation of any real or personal property, including water rights, belonging to any Indian
or any Indian tribe, band, or community that is held in trust by the United States or is
subject to a restriction against alienation imposed by the United States; or shall authorize
regulation of the use of such property in a manner inconsistent with any Federal treaty,
agreement, or statute or with any regulation made pursuant thereto; or shall confer
jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the
ownership or right to possession of such property or any interest therein.
“(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian
tribe, band, or community in the exercise of any authority which it may possess shall, if
not inconsistent with any applicable civil law of the State, be given full force and effect
in the determination of civil causes of action pursuant to this section.”
8
“Although the federal government has plenary power over tribal affairs” under the
doctrine of Indian sovereignty, “it began to delegate some of this authority to the states in
the early 1950’s during an assimilationist period.” (Middletown Rancheria, supra,
60 Cal.App.4th at p. 1348.) Public Law 280 is the principal statute under which that
delegation took place. “The primary focus of the legislative history of Public Law 280 is
on the grant of criminal jurisdiction set forth in section 2 (codified in 18 U.S.C. § 1162).”
(Middletown Rancheria, supra, at p. 1348.) The civil grant of jurisdiction, set forth in
section 4 of Public Law 280 (codified in 28 U.S.C. § 1360), by contrast, received
relatively little attention in the legislative process, which prompted “one commentator to
conclude that such jurisdiction was ‘an afterthought . . . added because it comported with
the pro-assimilationist drift of federal policy.’ ” (Boisclair, supra, 51 Cal.3d at p. 1150,
quoting Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation
Indians (1975) 22 U.C.L.A. L.Rev. 535, 543 (Goldberg).)
At the time Congress passed Public Law 280 in 1953, the policy of the federal
government tended to favor assimilation of Indian tribes into the surrounding citizenry of
their respective states. (See Cohen, supra, §§ 1.06-1.07, pp. 89-99.)5 Although there is
nothing definitive in the legislative history to shed light on Congressional intent, “[w]hat
is known is that Public Law number 280 passed despite considerable opposition from
Besides California, the other listed Public Law 280 states, as the statute was
originally enacted in 1953, were Minnesota, Nebraska, Oregon, and Wisconsin. Alaska
was added by Act of August 8, 1958, Public Law No. 85-615, section 1, 72 Statutes 545
(codified at 18 U.S.C. § 1162(a), 28 U.S.C. § 1360(a)). These six states are sometimes
known as “mandatory” Public Law 280 states. (See Cohen, supra, § 6.04[3][a], p. 538,
fn. 50.) Public Law 280 offered the option to other states to accept the same jurisdiction,
and eventually 10 additional states, sometimes known as “optional” Public Law 280
states (Arizona, Idaho, Florida, Iowa, Montana, Nevada, North Dakota, South Dakota,
Utah, and Washington), accepted jurisdiction under its terms, in whole or in part. (See
Cohen, supra, § 6.04[3][a], pp. 537-538 & fn. 47.)
5
Up to that point in time, federal policy had oscillated between periods of
promotion of tribal assimilation and promotion of tribal self-determination. (See
Organized Village of Kake v. Egan (1962) 369 U.S. 60, 74 (Village of Kake); Boisclair,
supra, 51 Cal.3d at p. 1150.)
9
Indian organizations, which feared ‘state jurisdiction would in practice operate to the
disadvantage of the Indians. The Indians in many instances preferred federal to state
jurisdiction because the [Bureau of Indian Affairs], for all its faults, at least perceived the
Indians as its special responsibility and concern.’ (Goldberg, supra, 22 U.C.L.A. L.Rev.
at p. 545.) Perhaps because of this opposition, Public Law number 280, in its final form,
represented ‘an attempt at compromise between wholly abandoning the Indians to the
states and maintaining them as federally protected wards, subject only to federal or tribal
jurisdiction.’ (Id. at p. 537.)” (Boisclair, supra, 51 Cal.3d at p. 1150.)
In line with this view of Public Law 280 as a compromise measure, Huber stakes
her position on the premise that the United States Supreme Court has read the extension
of civil jurisdiction under Public Law 280 narrowly, confining it to “private civil
litigation involving reservation Indians in state court” (Bryan v. Itasca County (1976)
426 U.S. 373, 385 (Bryan)) while withholding “general state civil regulatory control over
Indian reservations.” (Id. at p. 384.) In California v. Cabazon Band of Mission Indians
(1987) 480 U.S. 202 (Cabazon), which applies and expounds upon the holding in Bryan,
the high court drew a distinction between “ ‘criminal/prohibitory’ ” actions (which are
authorized by Public Law 280), and “ ‘civil/regulatory’ ” actions (which are not
authorized by Public Law 280), leaving to lower courts the task of fleshing out this
distinction in case-by-case adjudication. (Cabazon, at p. 209.) According to Huber, a
public enforcement action under Business and Professions Code section 17200—by
definition not a private dispute and seeking to force a change in her business operations
through the coercion of an injunction and civil penalties—is an exercise of “general
regulatory” power. We agree.
B. Public Law 280: Civil Jurisdiction
1. Public Law 280, Section 4, as Construed in Bryan
Because Bryan is pivotal to our analysis of subject matter jurisdiction, we begin
with a close look at that case. Bryan, decided three years after McClanahan v. State Tax
Commission of Arizona (1973) 411 U.S. 164 (McClanahan), “the ‘seminal case in the
area of American Indian income taxation’ [citation]” (Mike v. Franchise Tax Bd. (2010)
10
182 Cal.App.4th 817, 822), addressed a “question reserved in [McClanahan]: whether
the grant of civil jurisdiction to the states conferred by § 4 of Pub.L. 280 . . . is a
congressional grant of power to the states to tax reservation Indians except insofar as
taxation is expressly excluded by the terms of the statute.” (Bryan, supra, 426 U.S. at
p. 375.) As summarized by the Bryan court, McClanahan established the baseline rule,
restating and clarifying authority going back to the Marshall Trilogy, that states are
“disabled in the absence of congressional consent from imposing a state income tax on
the income of a reservation Indian earned solely on the reservation.” (Bryan, at p. 377.)6
At issue in Bryan was a $147.95 personal property tax imposed by a Minnesota
county on a mobile home owned by an enrolled member of the Chippewa tribe and
located on a reservation. (Bryan, supra, 426 U.S. at p. 375.) The Supreme Court of
Minnesota sustained the tax, holding that section 4(a) of Public Law 280 (28 U.S.C.
§ 1360(a)) grants a general power to tax. (Bryan, at pp. 375, 378.) Its analysis turned on
section 4(b) of Public Law 280 (28 U.S.C. § 1360(b)), which lists a series of exceptions
to the grant of power in section 4(a). (Bryan, at pp. 378-379.) “ ‘[U]nless paragraph (a)
is interpreted as a general grant of the power to tax, then the exceptions contained in
6
“The McClanahan principle derives from a general preemption analysis
[citation] that gives effect to the plenary and exclusive power of the Federal Government
to deal with Indian tribes [citations] and ‘to regulate and protect the Indians and the
property against interference even by a state,’ [citation]. This pre-emption analysis draws
support from ‘the “backdrop” of the Indian sovereignty doctrine,’ [citation] ‘ “[t]he
policy of leaving Indians free from state jurisdiction and control [which] is deeply rooted
in the Nation’s history,” ’ [citation] and the extensive federal legislative and
administrative regulation of Indian tribes and reservations, [citation]. ‘Congress has . . .
acted consistently upon the assumption that the States have no power to regulate the
affairs of Indians on a reservation,’ [citation], and therefore ‘ “State laws generally are
not applicable to tribal Indians on an Indian reservation except where Congress has
expressly provided that State laws shall apply.” ’ [Citation.] [¶] [T]his pre-emption
model usually yields different conclusions as to the application of state laws to tribal
Indians who have left or never inhabited federally established reservations, or Indians
‘who do not possess the usual accoutrements of tribal self-government.’ [Citations.]”
(Bryan, supra, 426 U.S. at p. 376, fn. 2.)
11
paragraph (b) are limitations on a nonexistent power,’ ” the state high court held. (Bryan,
at p. 378.) Reversing, the United States Supreme Court rejected the idea that section 4(b)
confirms a generalized grant of taxing power; the court instead interpreted section 4(a) as
having a wholly different purpose, one involving courts and civil justice. Section 4(a)
must be read as a grant of judicial power over “civil causes of action” the court held.
(Bryan, at pp. 383-385.)
Invoking the interpretive canon that “ ‘statutes passed for the benefit of dependent
Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in
favor of the Indians’ ” (Bryan, supra, 426 U.S. at p. 392), and reading the text of section
4 in light of its “sparse” legislative history (id. at pp. 383-384), the court explained that
“subsection (a) seems to have been primarily intended to redress the lack of adequate
Indian forums for resolving private legal disputes between reservation Indians, and
between Indians and other private citizens, by permitting the courts of the states to decide
such disputes.” (Id. at p. 383.) “[T]he consistent and exclusive use of the terms ‘civil
causes of action,’ ‘[arising] on,’ ‘civil laws . . . of general application to private persons
or private property,’ and ‘[adjudication],’ in both the Act and its legislative history
virtually compels our conclusion that the primary intent of § 4 was to grant jurisdiction
over private civil litigation involving reservation Indians in state court.” (Id. at pp. 384-
385; see also Cabazon, supra, 480 U.S. at p. 208 [“when a State seeks to enforce a law
within an Indian reservation under the authority of Pub.L. 280, it must be determined
whether the law is . . . civil in nature, and applicable only as it may be relevant to private
civil litigation in state court”].)
Under the holding in Bryan, the power Congress withheld from states in the civil
arena (“general state civil regulatory control”) is just as important to bear in mind as the
power it affirmatively granted (adjudicative authority over “private legal disputes”
involving “reservation Indians”). (See Bryan, supra, 426 U.S. at pp. 383-384.)
According to the Bryan court, Public Law 280 “was plainly not meant to effect [the] total
assimilation” of tribes into the legal regimes in Public Law 280 states. (Bryan, at
pp. 387-388.) The statute “was only one of many types of assimilationist legislation
12
under active consideration in 1953. [Citations.] And nothing in its legislative history
remotely suggests that Congress meant the Act’s extension of civil jurisdiction to the
States should result in the undermining or destruction of such tribal governments as did
exist and a conversion of the affected tribes into little more than ‘ “private, voluntary
organizations,” ’ [citation]—a possible result if tribal governments and reservation
Indians were subordinated to the full panoply of civil regulatory powers . . . of state and
local governments.” (Bryan, at p. 387.)
Turning to the application of Public Law 280 section 4(a) in this case, we have a
lawsuit in which one party is a member of a federally recognized tribe, and each of the
statutes at issue, the Directory Act, the Fire Safety Act, the Tax Stamp Act, and the UCL,
is a law of “general application to private persons” in California. Accordingly, under one
reading of the statutory language, the case would appear to fit easily within the statutory
grant of civil jurisdiction for all three causes of action. But that is not the reading the
United States Supreme Court has adopted; Bryan instructs us that what matters here is the
absence of any private dispute. (See Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1058-
1059 (Doe) [under Cabazon and Bryan “the private nature of disputes is what places
them within Public Law 280’s civil jurisdiction”].)7 Because the Attorney General sues
7
The question of Public Law 280 jurisdiction arose in Doe, supra, 415 F.3d 1038in a procedural posture that differs significantly from this case, but the opinion there is
nonetheless instructive. Doe was a federal action under the Indian Child Welfare Act
(ICWA) in which an Indian mother whose parental rights had been terminated by the
Lake County Superior Court sought declaratory and injunctive relief in an effort to
invalidate the Lake County dependency judgment. (Doe, at pp. 1047-1049, 1058-1059.)
The mother argued the dependency court lacked subject matter jurisdiction because she
was a member of a federally recognized tribe, and her child had been removed from a
home on the tribal reservation. (Id. at pp. 1040-1041.) In such a case, she argued, Indian
tribes have exclusive jurisdiction under ICWA. (Id. at p. 1041.) A premise of that
argument was that California dependency courts have no Public Law 280 jurisdiction
because dependency proceedings, which are initiated and pursued by county social
welfare agencies, do not involve “private disputes.” (Id. at pp. 1047-1049, 1058-1059.)
The Ninth Circuit panel opined that, even though the state is a party to dependency
proceedings, those proceedings concern the “status” of “a private individual,” and thus
13
with the manifest purpose of law enforcement on behalf of the public at large, and
because this case is not one in which we may fairly say it is “private in substance” (see
County of Inyo v. Jeff (1991) 227 Cal.App.3d 487, 494 [county’s action on behalf of
Indian child to collect delinquent child support from tribe member mother deemed to be
private in substance]), we agree with Huber that it falls outside the grant of civil
jurisdiction in Public Law 280.
2. The Conflation of Preemption and Subject Matter Jurisdiction
The Attorney General argues that subject matter jurisdiction in this case is not, and
need not be, founded upon Public Law 280. For this position, he relies heavily on a line
of United States Supreme Court cases upholding state laws regulating cigarette sales by
and to tribal members in the face of preemption challenges on grounds of Indian
sovereignty. (See Moe v. Confederated Salish and Kootenai Tribes of Flathead
Reservation (1976) 425 U.S. 463 (Moe); Washington v. Confederated Tribes of Colville
Indian Reservation (1980) 447 U.S. 134 (Colville); Department of Taxation & Finance of
New York v. Milhelm Attea & Bros., Inc. (1994) 512 U.S. 61 (Milhelm).) These cases,
according to the Attorney General, recognize that “an express federal statutory grant,
are “more analogous” to the private legal disputes falling within Public Law 280’s civil
jurisdiction than to the taxation and gambling statutes at issue in Bryan and Cabazon,
which “regulate the conduct of the public at large.” (Doe, 415 F.3d at p. 1059.) The
panel in Doe, however, did not rest its conclusion as to the applicability of Public Law
280 solely on the purported distinction between proceedings relating to status and broader
regulatory regimes. (Doe, at p. 1061.) Instead, the court went on to conclude ICWA
contemplates that, unless a tribe follows specified procedures to “reassume” jurisdiction,
Public Law 280 states retain Public Law 280 jurisdiction (25 U.S.C. § 1918(a)) in “child
custody proceedings” (25 U.S.C. § 1903(i)), thus bringing the case within an exception to
ICWA’s reservation of exclusive tribal jurisdiction for situations in which “jurisdiction is
otherwise vested in the State by existing federal law.” (25 U.S.C. § 1911(a).) (Doe, at
pp. 1061-1062.) Obviously, this latter part of the holding in Doe is unique to ICWA law
and has no applicability here, but what is significant about the case is that, having
concluded that the underlying Lake County case did not involve a truly “private dispute”
falling clearly within the grant of Public Law 280 jurisdiction, the panel took on the
difficult next step of the analysis, looking for and finding a basis for congressionally
conferred jurisdiction elsewhere.
14
such as Public Law 280, is not the sole source of state regulatory authority over an Indian
in Indian Country.”
Citing People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th
1561 (Black Hawk), which applied the Moe-Colville-Milhelm line of preemption cases in
a Business and Professions Code section 17200 action brought by the State of California,
the Attorney General, in essence, equates a finding of no preemption with the existence
of subject matter jurisdiction. Black Hawk, like this case, involved tobacco smokeshops
operated on Indian trust land, there on allotments of the Agua Caliente Band of Cahuilla
Indians (the Band) in Riverside County. (Black Hawk, at pp. 1564-1565.) We should
follow Black Hawk, the Attorney General argues, since that case was a UCL proceeding
in which, as here, the predicate “unlawful” acts included sales of cigarettes in violation of
the Directory Act and the Fire Safety Act. (Black Hawk, at p. 1565.) It is true that, in
Black Hawk, the Court of Appeal affirmed a preliminary injunction against the operators
of the smokeshops, but Public Law 280 was never raised in that case and thus the court
did not address it. (Black Hawk, at pp. 1564, 1566-1567, 1572.) While the smokeshop
defendants in Black Hawk appear to have asserted some sort of jurisdictional challenges
in the trial court (id. at p. 1566), they did not appeal on that ground, instead mounting a
“new argument that the State of California has no right to regulate tobacco sales on the
Band’s reservation because the Band has the exclusive authority to regulate tobacco sales
on the reservation.” (Id. at p. 1567.) The Court of Appeal panel rejected the argument,
upholding the trial court’s ruling that the state could apply its laws to the smokeshops.
(Id. at pp. 1569-1571.) The panel relied on Moe and Colville, as the trial court did, and
never mentioned subject matter jurisdiction. (Black Hawk, at pp. 1566, 1569-1571.)
In her treatment of Black Hawk, Huber draws an analytical distinction that we
think brings some clarity to the sometimes loose use of the term “jurisdiction” in the case
law in this area. While the ultimate issue before the high court in Bryan, supra, 426 U.S.
373 was the reach of state tax law into Indian country—a question of legislative
jurisdiction—the effect of its construction of section 4(a) of Public Law 280 was to
confine the civil adjudicative jurisdiction of state courts to the enforcement of state law
15
in private disputes.8 What this means for our purposes is that, under the holding in
Bryan, supra, 426 U.S. 373, we may proceed to apply California law unless it is
preempted by federal law, but the antecedent question of adjudicative jurisdiction must
be addressed first, at the threshold. As we read Bryan, if there is no adjudicative
jurisdiction, we have no need to proceed further to the question of preemption—indeed
we have no power to do so. This, fundamentally, is the subject matter jurisdiction issue
Huber raises here. It is a close and difficult question, but with a few exceptions we agree
8
The difference between jurisdiction to adjudicate, on the one hand, and
jurisdiction to legislate, on the other, is well recognized in California law (2 Witkin, Cal.
Procedure (5th ed. 2008) Jurisdiction, § 5, pp. 578-579 (Witkin)) as it is in state and
federal law generally (see generally Willis L.M. Reese, Legislative Jurisdiction,
78 Colum. L.Rev. 1587, 1587-1594 (1978)), and has often been noted by the high court
in Indian law cases involving tribal courts (see Strate v. A-1 Contractors (1997) 520 U.S.
438, 453; Cohen, supra, § 7.01, pp. 597-598). Adjudicative jurisdiction concerns “a
court’s competency to decide the issue before it” (Witkin, supra, § 11, at p. 584), while
legislative jurisdiction involves the prescriptive power of “ ‘a state to make its law
applicable to persons or activities’ ” (Hartford Fire Ins. Co. v. State of California (1993)
509 U.S. 764, 813 (dis. opn. of Scalia, J.)). To put it succinctly, legislative jurisdiction is
“the power of a state to apply its laws to any given set of facts” (italics added), whereas
adjudicative jurisdiction “is the power of a state to try a particular action in its courts.”
(McCluney v. Jos. Schlitz Brewing Co. (8th Cir. 1981) 649 F.2d 578, 581, fn. 3, affd.
(1981) 454 U.S. 1071.)
Prior to Bryan, the few reported California decisions addressing Public Law 280
read it as a grant of legislative jurisdiction (e.g., Acosta v. San Diego County (1954)
126 Cal.App.2d 455, 460, 463-464 [Public Law 280 cited as one of a number of statutes
conferring authority on the state to extend its civil and criminal laws to Indian
reservations]; see Witkin, supra, § 5, p. 578 [citing Acosta as an example of a case
addressing the issue of legislative jurisdiction]), and took as a given that, prior to the
enactment of Public Law 280, civil regulatory statutes could not be applied to conduct by
tribe members on Indian reservations (see Arnett v. Five Gill Nets (1975) 48 Cal.App.3d
454, 459, 461-462 [rejecting contention that Public Law 280 authorized application of
statute regulating fishing rights on Klamath River Reservation]; Elser v. Gill Net No. One
(1966) 246 Cal.App.2d 30, 36-37 [same]).
16
with her that none of the cases on which the Attorney General relies squarely addresses
it.9
The one exception in California law is the Third District’s recent decision in
People ex rel. Becerra v. Rose (2017) 16 Cal.App.5th 317 (Rose), which was decided
after the close of briefing. Rose, like Black Hawk and this case, was a UCL public
enforcement action by the Attorney General against an Indian-owned retail tobacco
business. (Rose, at pp. 321-323.) It, too, involved alleged violations of the Tax Stamp
Act, the Directory Act, and the Fire Safety Act. (Id. at pp. 322-323.) The defendant,
Rose, was a member of the Alturas Indian Rancheria, but his smokeshops were located
more than 150 miles from the rancheria on allotments in which the Alturas had no
interest. (Id. at p. 322.) Rose follows and adopts the no-preemption holding in Black
Hawk, relying in part on Colville (Rose, at pp. 328-329), but goes further, expressly
rejecting the Public Law 280 argument that is the centerpiece of Huber’s argument in this
case. (Rose, at pp. 329-331.) In doing so, the Rose court addressed the issue of
preemption first, resolved it in favor of applying state law (id. at pp. 328-329), and then
saw no need to analyze jurisdiction under Public Law 280, explaining as follows: “Rose
cites two cases—Bryan v. Itasca County . . . and Doe v. Mann . . . . But those cases
addressed only whether Public Law 280 conferred subject matter jurisdiction on state
courts. They did not address the broader issue of whether California and its courts have
9
In addition to Black Hawk, supra, 197 Cal.App.4th 1561, the Attorney General
relies on out-of-state authority in which the enforceability of state statutes governing
cigarette sales by Indian smokeshop businesses was at issue, including two federal cases
(see King Mountain Tobacco Inc. v. McKenna (9th Cir. 2014) 768 F.3d 989; Muscogee
(Creek) Nation v. Pruitt (10th Cir. 2012) 669 F.3d 1159) and two state cases (State ex rel.
Edmondson v. Native Wholesale Supply (Okla. 2010) 237 P.3d 199 (Native Wholesale
Supply I); State ex rel. Pruitt v. Native Wholesale Supply (Okla. 2014) 338 P.3d 613(Native Wholesale Supply II)). None of these cases addresses the issue of state court
subject matter jurisdiction under Public Law 280, because each case arose either in
federal court (King Mountain, Muscogee) or in a non-Public Law 280 state (Muscogee,
Native Wholesale Supply I, Native Wholesale Supply II).
17
jurisdiction because such jurisdiction is not preempted by federal law and tribal
sovereignty. This is not a Public Law 280 case.” (Rose, at p. 330.)
To us, it is not clear what “the broader issue” of preemption, the effect of which is
a negation of power, not a grant of it, has to do with adjudicative jurisdiction. Every
California case involving Indian litigants in Indian country is “a Public Law 280 case”—
in the sense that the statute must be applied, and if its terms are met (either by
considering Public Law 280 alone or in the context of another statutory scheme such as
ICWA, as it was in Doe, supra, 415 F.3d 1038, see ante, fn. 7), the case may proceed,
while if they are not, the case must be dismissed—unless some other grant of
congressional authority to adjudicate can be found. Ultimately, the concluding statement
in Rose that “California courts have routinely exercised subject matter jurisdiction in
cases in which the state’s civil/regulatory laws may be applied to Indian country” is most
telling. (Rose, supra, 16 Cal.App.5th at p. 330.) Far from routine assumption of subject
matter jurisdiction in cases involving assertion of civil/regulatory laws, the small sample
of such cases we could find suggests that, following Bryan, California courts have
dismissed for lack of subject matter jurisdiction where a jurisdictional objection was
raised.10 Two California cases are cited in Rose as counter examples, the first of which,
People v. McCovey, supra, 36 Cal.3d 517, is a criminal case—an area in which it has
never been doubted that Public Law 280 grants California plenary jurisdiction to
adjudicate—and the second, Black Hawk, supra, 197 Cal.App.4th 1561, as we have
10
E.g., Boisclair, supra, 51 Cal.3d at pp. 1153, 1156, 1158-1159 (holding trial
court should have dismissed request for declaratory relief for lack of subject matter
jurisdiction under section 4(b) of Public Law 280 (28 U.S.C. § 1360(b)) because alleged
easement rights to road running through Indian trust land implicated “ ‘ownership or right
to possession of [Indian] property’ ”); Middletown Rancheria, supra, 60 Cal.App.4th at
pp. 1343, 1352 (granting writ of review and holding Workers’ Compensation Appeals
Board lacked subject matter jurisdiction over tribal employee’s claim because
proceedings deemed regulatory and thus not a private dispute within section 4(a) of
Public Law 280 (28 U.S.C. § 1360(a))).
18
noted, does not address the issue of subject matter jurisdiction. (Rose, at p. 330.) Thus,
we do not find Rose to be persuasive on this point.
What is problematic about the Rose court’s treatment of Public Law 280, in our
view—a flaw also reflected in the position taken by the Attorney General in this case—is
that it conflates adjudicative jurisdiction and legislative jurisdiction. He cites to a
passage in Cabazon in which the high court stated it has “not established an inflexible per
se rule precluding state jurisdiction over tribes and tribal members in the absence of
express congressional consent” (Cabazon, supra, 480 U.S. at pp. 214-215), but the
quoted passage is from a section of the Cabazon opinion specifically addressing
preemption, not adjudicative jurisdiction. Although the Attorney General correctly points
out Public Law 280 is not “the sole possible source for state authority in this area,” that
seems to us beside the point. It is true, as we shall discuss below (see section III.D.1,
post), that the modern doctrine of Indian preemption leaves room for implied state
legislative authority over Indians in Indian country based on a weighing of competing
policy interests, but judicial power is a separate and distinct matter and must rest on some
express delegation of authority. We cannot confer jurisdiction on ourselves, based on a
weighing of policy interests, or for any other reasons not grounded in a legislative grant
from Congress.
When pressed on the issue of subject matter jurisdiction at oral argument, the
Attorney General’s fallback position was that nothing in Public Law 280 withdrew any
aspect of the California courts’ preexisting general jurisdiction. All Public Law 280 did,
he suggested, was expand the adjudicative jurisdiction over Indians in Indian country that
California courts already enjoyed. We see two basic problems with this point of view.
First, taking the argument on its own terms, we have difficulty seeing what there was to
expand if jurisdiction was general to begin with. The default rule that the courts of this
state have subject matter jurisdiction to enforce California law in any case where there is
personal jurisdiction over the parties does not supply an adequate answer to the question
Huber raises, for if it did, Public Law 280 was an idle act by Congress. Second, the
argument runs contrary to a fundamental premise of the Bryan opinion—that, as a
19
compromise measure, Public Law 280 granted narrow civil adjudicative jurisdiction as a
way to avoid the “devastating impact on tribal governments that might result from an
interpretation of § 4 as conferring upon state and local governments general civil
regulatory control over reservation Indians.” (Bryan, supra, 426 U.S. at p. 388, fn. 14.)
Supplanting section 4(a) with state court general jurisdiction effectively transforms
Public Law 280 into the full and complete assimilationist measure the high court held it
was never intended to be. (Bryan, at p. 390.)
This is not a case, to be sure, in which an alternative tribal or federal forum
appears to be available for a civil enforcement action by the State of California. But in
our view, that is an inevitable consequence of Bryan’s conclusion that section 4(a) of
Public Law 280 does not extend “general state civil regulatory control over Indian
reservations.” (Bryan, supra, 426 U.S. at p. 384.) Because, in the absence of such a
grant, the exercise of state judicial power over on-reservation conduct by a Wiyot Tribe
member impedes the tribe’s ability to foster and protect its own way of enforcing the rule
of law, we cannot agree that, in the absence of express congressional authorization, the
general jurisdiction of California courts supplies a basis to proceed in this case. In this
specialized area, the California courts are more like courts of limited jurisdiction than
courts of general jurisdiction when it comes to disputes involving the on-reservation
conduct of tribe members, and as a result, the first and most fundamental question to ask
before proceeding in such a case is whether we are empowered to act. Under the grant of
civil adjudicative jurisdiction in Public Law 280, we hold that the answer to that question
here is no.
C. Public Law 280: Criminal/Prohibitory Jurisdiction
Having concluded that this case falls outside the grant of civil adjudicative
jurisdiction in Public Law 280, we come to the next question posed by the holding in
Bryan—whether subject matter jurisdiction exists over any of the claims alleged in this
case because the statutes being asserted here may be deemed criminal/prohibitory in
20
nature and thus within the grant of criminal jurisdiction in section 2 of Public Law 280
(codified in 18 U.S.C. § 1162).11
Cabazon sets the frame of analysis. The Cabazon case involved two federally
recognized bands of Mission Indians in Riverside County, the Morongo and the Cabazon,
each of which operated bingo games on its reservation. (Cabazon, supra, 480 U.S. at
pp. 204-205.) The State of California sought to enforce against these tribes Penal Code
section 326.5, which, as the high court read it, “does not entirely prohibit the playing of
bingo but permits it when the games are operated and staffed by members of designated
charitable organizations who may not be paid for their services. Profits must be kept in
special accounts and used only for charitable purposes; prizes may not exceed $ 250 per
game.” (Cabazon, at p. 204.) The high court’s opinion reversing put to rest any notion
that Bryan was a narrow decision, applicable only to assertions of state taxing power.
Even though California, exercising its police powers, sought to invoke what was
nominally a penal statute in Cabazon, the court held that “when a State seeks to enforce a
law within an Indian reservation under the authority of Pub.L. 280, it must be determined
whether the law is criminal in nature, and thus fully applicable to the reservation under §
11
Section 2 of Public Law 280, 18 U.S.C. § 1162, provides as follows:
“(a) Each of the States . . . listed in the following table shall have jurisdiction over
offenses committed by or against Indians in the areas of Indian country listed . . . to the
same extent that such State . . . has jurisdiction over offenses committed elsewhere within
the State . . . and the criminal laws of such State . . . shall have the same force and effect
within such Indian country as they have elsewhere within the State . . . :
“State or Territory of Indian country affected
[¶ . . . ¶]
California…………………………All Indian country within the State.”
[¶ . . . ¶]
Structurally, section 2 is laid out similarly to section 4, with a series of proviso clauses
(none of which is relevant here) following section 2. The same states are listed for both
section 2 and section 4.
21
2, or civil in nature, and applicable only as it may be relevant to private civil litigation in
state court.” (Id. at p. 208.)
“[I]f the intent of a state law is generally to prohibit certain conduct,” the court
explained, “it falls within Pub.L. 280’s grant of criminal jurisdiction, but if the state law
generally permits the conduct at issue, subject to regulation, it must be classified as
civil/regulatory and Pub.L. 280 does not authorize its enforcement on an Indian
reservation. The shorthand test is whether the conduct at issue violates the state’s public
policy.” (Cabazon, supra, 480 U.S. at p. 209.) The remedies attached to a statute are not
necessarily dispositive because that would allow states to avoid a regulatory classification
simply by attaching some form of criminal sanction. (See id. at p. 211 [“[T]hat an
otherwise regulatory law is enforceable by criminal as well as civil means does not
necessarily convert it into a criminal law within the meaning of Pub.L. 280. Otherwise,
the distinction between [Public Law 280’s criminal jurisdiction and civil jurisdiction]
could easily be avoided”].) Ultimately, in Cabazon, the court determined that the bingo
laws at issue were regulatory in nature, even though enforced with penal sanctions,
because “California permits a substantial amount of gambling activity, including bingo,
and actually promotes gambling through its state lottery,” demonstrating that “California
regulates rather than prohibits gambling in general and bingo in particular.” (Cabazon, at
p. 211.)
Applying this test to the three causes of action pleaded in this case, we think that
two of the three claims, the first, for violation of the Directory Act, and the second, for
violation of the Fire Safety Act, rest on statutes that are criminal/prohibitory in nature and
thus may be enforced under Public Law 280’s grant of criminal jurisdiction. The
Directory Act establishes a categorical ban on the sale of cigarettes purchased from
manufacturers who have not certified their compliance with the MSA or made escrow
payments in lieu thereof. (Rev. & Tax. Code, § 30165.1, subd. (e)(2).) A useful analogy,
in our view, is to statutory prohibitions on cigarette sales to minors or underage drinking,
22
two examples of categorical bans which have been found to be criminal/prohibitory in
nature.12 The Fire Safety Act presents a closer question, but we think it too is
criminal/prohibitory in nature. Here again we have a statute that sets up a categorical
ban, in the case of this statute on all products offered for sale that do not meet
certification requirements for noncombustible packaging. (Health & Saf. Code, § 14951,
subd. (a).) It is analogous, we think, to statutes prohibiting the general possession and/or
sale of certain classes of fireworks subject to narrow exceptions.13 In assessing the
proper classification of these two laws, we find it significant that both meet the Cabazon
shorthand test for statutes outlawing conduct in violation of public policy (Cabazon,
supra, 480 U.S. at p. 209), since both involve transgressions more serious than violation
of a statute per se, but also create hazards to public health and safety.
Unlike the Directory Act and the Fire Safety Act, we view the third cause of action
for violation of the UCL as a claim founded on a civil/regulatory law and thus outside
Public Law 280’s grant of criminal jurisdiction. The UCL is a trade regulation statute.
California permits open business competition—indeed promotes it—and the UCL
regulates competition by making illegal only a subset of business practices that are
“unlawful, unfair or fraudulent,” as well as advertising that is “unfair, deceptive, untrue
or misleading.” (Bus. & Prof. Code, § 17200.) A useful analogy here is to cases
involving attempted enforcement under Public Law 280 of driving infraction laws on
Indian reservations; these laws apply to all driving, which is, of course, generally
allowed, but they forbid only certain subsets of driving, such as driving over a certain
speed limit14 or driving without proof of insurance.15 The Attorney General emphasizes
12
State v. Lasley (Iowa 2005) 705 N.W.2d 481, 490-491 [cigarette sales to
minors]; State v. Robinson (Minn. 1997) 572 N.W.2d 720, 722-724 [underage drinking].
13
Quechan Indian Tribe v. McMullen (9th Cir.1993) 984 F.2d 304, 307; United
States v. Marcyes (9th Cir. 1977) 557 F.2d 1361, 1364.
14
Confederated Tribes of the Colville Reservation v. Washington (9th Cir.1991)
938 F.2d 146, 148-149.
15
State v. Johnson (Minn. 1999) 598 N.W.2d 680, 681, 683.
23
that the “unlawful” acts alleged in the third cause of action are based derivatively on
alleged violations of the Directory Act, the Fire Safety Act, and the Tax Stamp Act, and
we should look to the intent of the underlying statutes to determine whether they are
criminal/prohibitory. But it is the intent of the UCL that counts. To the extent the UCL
is being used here as an enforcement tool targeting unlawful acts under more specific
statutes, that simply illustrates the dividing line we draw: The UCL applies to business
competition generally, which is not only permitted but promoted in California, and
outlaws only specific practices comprising a subset of competition.
Accordingly, we agree with Huber that the trial court lacked adjudicative
jurisdiction to proceed on the third cause of action seeking to enforce the Tax Stamp Act,
the Directory Act, and the Fire Safety Act derivatively through the UCL, and thus we
hold that the court erred by granting summary adjudication against her and issuing an
injunction on that claim.16 But at the same time we agree with the Attorney General that
the court had adjudicative jurisdiction to proceed on the first and second causes of action
seeking to enforce the Directory Act and the Fire Safety Act directly, which requires that
we proceed to examine whether the Directory Act and the Fire Safety Act may be applied
to the conduct at issue in this case. It is to that issue we now turn.
D. Preemption
1. Applicable Principles
“The relation between the Indians and the states has by no means remained
constant since the days of John Marshall.” (Village of Kake, supra, 369 U.S. at p. 71.)
Over the many years since that time, “Congress has to a substantial degree opened the
doors of reservations to state laws” (id. at p. 74) to such a degree that “ ‘[o]rdinarily,’ . . .
16
In addition to her attack on subject matter jurisdiction, Huber makes a series of
other statutory interpretation arguments directed at the UCL claim, all of which rest on
the contention that the claimed violations of the Directory Act, the Fire Safety Act, and
the Tax Stamp Act cannot be used as predicate unlawful acts to support the UCL claim.
We need not address these contentions in light of the disposition we reach with respect to
the third cause of action.
24
‘an Indian reservation is considered part of the territory of the State.’ ” (Nevada v. Hicks
(2001) 533 U.S. 353, 361-362; see also Village of Kake, supra, at p. 72; Acosta v. San
Diego County, supra, 126 Cal.App.2d at p. 463.) Although as of the early 1960s, it was
still true that the “[d]ecisions of [the United States Supreme Court were] few as to the
power of the states when not granted Congressional authority to regulate matters
affecting Indians” (Village of Kake, supra, at p. 74), a deep body of high court case law
has now developed concerning when, in the absence of an express congressional grant of
power, state law may be applied to reservation Indians.
The high court summarized the applicable principles in White Mountain Apache
Tribe v. Bracker (1980) 448 U.S. 136 (Bracker) as follows: “Congress has broad power
to regulate tribal affairs under the Indian Commerce Clause, Art. 1, § 8, cl. 3. [Citation.]
This congressional authority and the ‘semi-independent position’ of Indian tribes have
given rise to two independent but related barriers to the assertion of state regulatory
authority over tribal reservations and members. First, the exercise of such authority may
be pre-empted by federal law. [Citations.] Second, it may unlawfully infringe ‘on the
right of reservation Indians to make their own laws and be ruled by them.’ [Citations.]
The two barriers are independent because either, standing alone, can be a sufficient basis
for holding state law inapplicable to activity undertaken on the reservation or by tribal
members. They are related, however, in two important ways. The right of tribal self-
government is ultimately dependent on and subject to the broad power of Congress.
Even so, traditional notions of Indian self-government are so deeply engrained in our
jurisprudence that they have provided an important ‘backdrop,’ [citation] against which
vague or ambiguous federal enactments must always be measured.
“The unique historical origins of tribal sovereignty make it generally unhelpful to
apply to federal enactments regulating Indian tribes those standards of pre-emption that
have emerged in other areas of the law. Tribal reservations are not States, and the
differences in the form and nature of their sovereignty make it treacherous to import to
one notions of pre-emption that are properly applied to the other. The tradition of Indian
sovereignty over the reservation and tribal members must inform the determination
25
whether the exercise of state authority has been pre-empted by operation of federal law.
[Citation.] . . . [T]his tradition is reflected and encouraged in a number of congressional
enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and
economic development. Ambiguities in federal law have been construed generously in
order to comport with these traditional notions of sovereignty and with the federal policy
of encouraging tribal independence. [Citation.] We have thus rejected the proposition
that in order to find a particular state law to have been pre-empted by operation of federal
law, an express congressional statement to that effect is required. [Citation.] At the same
time any applicable regulatory interest of the State must be given weight [citation], and
‘automatic exemptions “as a matter of constitutional law” ’ are unusual. [Citation.]
“When on-reservation conduct involving only Indians is at issue, state law is
generally inapplicable, for the State’s regulatory interest is likely to be minimal and the
federal interest in encouraging tribal self-government is at its strongest.[17] . . . More
difficult questions arise where . . . a State asserts authority over the conduct of non-
Indians engaging in activity on the reservation. In such cases we have examined the
language of the relevant federal treaties and statutes in terms of both the broad policies
that underlie them and the notions of sovereignty that have developed from historical
traditions of tribal independence. This inquiry is not dependent on mechanical or
absolute conceptions of state or tribal sovereignty but has called for a particularized
inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry
designed to determine whether, in the specific context, the exercise of state authority
would violate federal law. [Citations.]” (Bracker, supra, 448 U.S. at pp. 142-145.)
17
New Mexico v. Mescalero Apache Tribe (1983) 462 U.S. 324, 331-332 (New
Mexico II) (only “in exceptional circumstances [may] a State . . . assert jurisdiction over
the on-reservation activities of tribal members”).
26
2. Moe, Colville, and Milhelm
Bracker, supra, 448 U.S. 136 summed up an area of law in which Moe, supra,425 U.S. 463, Colville, supra, 447 U.S. 134, and Milhelm, supra, 512 U.S. 61—each
involving cigarette sales on Indian reservations and the extent to which state taxation and
regulation schemes may be applied to those sales—are leading decisions. Thus, the
parties rightly devote a great deal of attention to these three cases in their briefs.
Although ultimately disagreeing about how the Moe-Colville-Milhelm line of precedent
should be applied here, they largely agree about what each case held.
Moe, supra, 465 U.S. 463 involved consolidated appeals in two cases that arose on
the Flathead reservation in Montana, where a member of the Confederated Salish and
Kootenai Tribes operated retail smokeshops. (Moe, at pp. 465-466.) A Montana statute
required all tobacco vendors to hold state-issued licenses, and all licensed vendors to
collect an excise tax on retail sales of cigarettes by affixing tax stamps on cigarettes sold
at retail. (Id. at p. 467.) When two tribe members were arrested by Montana authorities
for the misdemeanor offenses of operating without a license and selling cigarettes without
tax stamps affixed to them, they sued in federal district court to enjoin enforcement. (Id.
at pp. 467-468.) And in a second, related case, the tribe and some of its members sued to
enjoin enforcement of a statute imposing a personal property tax on vehicles owned by
tribe members living on the reservation. (Id. at pp. 468-469.)
Citing cases barring states from directly taxing Indian-owned property or income
earned by Indians on a reservation, the district court held Montana could not apply its tax
on vehicles, its vendor licensing scheme, or its cigarette taxing scheme, with one
significant exception: Montana “may require a pre-collection of the tax imposed by law
upon the non-Indian purchaser of the cigarettes.” (Moe, supra, 425 U.S. at pp. 468-469.)
The high court affirmed, and the last element of its opinion—upholding the requirement
of pre-collection of excise tax owed by non-tribal purchasers of cigarettes (id. at pp. 481-
483)—is the anchor for the later decisions in Colville, supra, 447 U.S. 134 and Milhelm,
supra, 512 U.S. 61 building on it.
27
Essentially, what the court held is that, to prevent tax evasion by non-Indians who
purchase cigarettes, Montana may enlist tribal sellers in an effort to collect tax owed by
these shoppers. (Moe, supra, 425 U.S. at pp. 481-483.) The court explained, “Since
nonpayment of the tax is a misdemeanor as to the retail purchaser, the competitive
advantage which the Indian seller doing business on tribal land enjoys over all other
cigarette retailers, within and without the reservation, is dependent on the extent to which
the non-Indian purchaser is willing to flout his legal obligation to pay the tax.” (Id. at
p. 482.) Noting that the burden imposed on Indian sellers “is not, strictly speaking, a tax
at all” because the ultimate tax burden falls on purchasers—which is why cases
invalidating direct taxation of reservation Indians did not apply—the court held that the
precollection requirement was nothing more than an expedient “minimal burden designed
to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller
will avoid payment of a concededly lawful tax.” (Id. at p. 483.)
Colville expands the core holding in Moe in a number of ways. The appeal there
was from a district court judgment in consolidated cases, both involving cigarette sales by
Indian smokeshops on reservation land in the State of Washington. (Colville, supra,
447 U.S. at p. 139.) One case involved the Colville, Lummi, and Makah reservations,
and the other involved the Yakima reservation. (Id. at pp. 139, 143-144.) These tribes,
like the Wiyots, had their own scheme of taxing sales of cigarettes under tribal law. (Id.
at pp. 144-145.) Washington had a tax stamp system that required precollection of an
excise tax, similar to the one involved in Moe, but the Washington scheme went beyond
Montana’s by imposing on sellers detailed recordkeeping requirements. (Colville, at
pp. 143, 151.) Also presented for decision in Colville were enforcement issues
concerning whether Washington had the power to seize unstamped cigarettes as
contraband and whether Indians living on a reservation who were not members of the
reservation tribe could be taxed directly. (Id. at pp. 160-161.)
The holdings in Colville on this complex array of issues are noteworthy in three
respects. First, Washington’s scheme of taxing nonmembers who make on-reservation
purchases was found to be valid and not preempted. (Colville, supra, 447 U.S. at
28
pp. 154-155.) Here, the court observed that “the value marketed by the smokeshops to
persons coming from outside is not generated on the reservations by activities in which
the Tribes have a significant interest.” (Id. at p. 155.) “What the smokeshops offer these
customers,” the court said, “is solely an exemption from state taxation.” (Ibid.) The
court rejected the proposition that “principles of federal Indian law, whether stated in
terms of pre-emption, tribal self-government, or otherwise, . . . authorize Indian tribes to
market an exemption from state taxation to persons who would normally do their
business elsewhere.” (Ibid.)
The tribes’ reliance on their own local schemes of taxing and regulating cigarette
sales failed. (Colville, supra, 447 U.S. at pp. 158-159.) “There is no direct conflict
between the state and tribal schemes, since each government is free to impose its taxes
without ousting the other,” the court concluded, and “the State does not interfere with the
Tribes’ power to regulate tribal enterprises when it simply imposes its tax on sales to
nonmembers.” (Ibid.) After weighing the federal, tribal, and state interests involved, the
court found no preemption, pointing out that the “simple collection burden imposed by
Washington’s cigarette tax on tribal smokeshops is legally indistinguishable from the
collection burden upheld in Moe.” (Id. at p. 159.) For the most part, this portion of the
opinion—comprising its primary holding—is a straightforward application of Moe; it
plows new ground only to the extent it upholds Washington’s recordkeeping requirement,
an added administrative burden on tribal sellers that was not present in Moe. (Colville, at
pp. 151, 159-160.) The tribes had the burden of showing that the recordkeeping
requirements were “not reasonably necessary as a means of preventing fraudulent
transactions,” and they failed to meet it. (Id. at p. 160.)
Second, the court found that Washington was empowered “to apply its sales and
cigarette taxes to Indians resident on the reservation but not enrolled in the governing
Tribe.” (Colville, supra, 447 U.S. at p. 160.) The court held that, although such persons
fell within the federal statutory definition of “Indian,” that fact did not demonstrate a
congressional intent to exempt non-tribe members from taxation. (Id. at p. 161.) The
court focused instead on whether taxing nonmembers “contravene[s] the principle of
29
tribal self-government.” (Ibid.) It did not, the court explained, “for the simple reason
that nonmembers are not constituents of the governing Tribe.” (Ibid.) Third, and finally,
the court found Washington had “power to seize unstamped cigarettes” off-reservation,
where the “state power over Indian affairs is considerably more expansive than it is
within reservation boundaries.” (Id. at pp. 161-162.) Having so held, however, the court
declined to reach the question whether Washington “may enter onto the reservations,
seize stocks of cigarettes which are intended for sale to nonmembers, and sell these
stocks in order to obtain payment of the taxes due.” (Id. at p. 162.)
Milhelm picked up where Moe and Colville left off, but specifically addressed the
wholesale level of distribution. Historically, under federal legislation known as the
Indian Trader Statutes, enacted pursuant to the Indian Commerce Clause and designed to
protect against exploitation of tribes by Indian traders, and under prior Supreme Court
case law, federally licensed trading agents have been exempt from state taxation, just as
tribe members are exempt from state taxation. (Milhelm, supra, 512 U.S. at pp. 68, 70.)
Responding to reports of huge quantities of unstamped cigarettes being shipped into
Indian reservations at the wholesale level by Indian traders—volumes that were far in
excess of the amounts tribe members would be expected to consume—New York
attempted to cut off the supply of what appeared to be a black market in untaxed
cigarettes on Indian reservations by adopting regulations that imposed strict
recordkeeping requirements and quantity limitations on wholesalers. (Id. at pp. 64-67.)
The question presented was whether federal statutes governing trade with Indians
preempted New York’s program. (Id. at p. 64.)
Reviewing a decision of the New York Court of Appeals that held New York’s
regulations preempted by the Indian Trader Statutes, the high court framed the issue as
follows. “Because New York lacks authority to tax cigarettes sold to tribal members for
their own consumption, see Moe [, supra,] 425 U.S. 463, 475-481 . . . , cigarettes to be
consumed on the reservation by enrolled tribal members are tax exempt and need not be
stamped. On-reservation cigarette sales to persons other than reservation Indians,
however, are legitimately subject to state taxation. See . . . Colville . . . 447 U.S. 134,
30
160-161 . . . . [¶] To ensure that nonexempt purchasers do not likewise escape taxation,
the regulations limit the quantity of untaxed cigarettes that wholesalers may sell to tribes
and tribal retailers.” (Milhelm, supra, 512 U.S. at pp. 64-65, 68-69.)
The court reversed, extending Moe and Colville with the following explanation:
“The specific kind of state tax obligation that New York’s regulations are designed to
enforce—which falls on non-Indian purchasers of goods that are merely retailed on a
reservation—stands on a markedly different footing from a tax imposed directly on
Indian traders, on enrolled tribal members or tribal organizations, or on ‘value generated
on the reservation by activities involving the Tribes,’ Colville, 447 U.S., at 156-157. Moe
[and] Colville . . . make clear that the States have a valid interest in ensuring compliance
with lawful taxes that might easily be evaded through purchases of tax-exempt cigarettes
on reservations; that interest outweighs tribes’ modest interest in offering a tax exemption
to customers who would ordinarily shop elsewhere. The ‘balance of state, federal, and
tribal interests,’ [citation], in this area thus leaves more room for state regulation than in
others. In particular, these cases have decided that States may impose on reservation
retailers minimal burdens reasonably tailored to the collection of valid taxes from non-
Indians.
“Although Moe and Colville dealt most directly with claims of interference with
tribal sovereignty, the reasoning of those decisions requires rejection of the submission
that [a provision of the Indian Trader Statutes] bars any and all state-imposed burdens on
Indian traders. . . . [¶] . . . [¶] . . . We are persuaded . . . that New York’s decision to
stanch the illicit flow of tax-free cigarettes early in the distribution stream is a
‘reasonably necessary’ method of ‘preventing fraudulent transactions,’ one that ‘polices
against wholesale evasion of [New York’s] own valid taxes without unnecessarily
intruding on core tribal interests.’ Colville, 447 U.S., at 160 []. The sole purpose and
justification for the quotas on untaxed cigarettes is the state’s legitimate interest in
avoiding tax evasion by non-Indian consumers. . . . [¶] . . . [¶] . . . [And b]y requiring
wholesalers to precollect taxes on, and affix stamps to, cigarettes destined for nonexempt
consumers, New York has simply imposed on the wholesaler the same precollection
31
obligation that, under Moe and Colville, may be imposed on reservation retailers.”
(Milhelm, supra, 512 U.S. at pp. 73-76, fns. omitted.)
3. Preemption Analysis
Arguing for preemption, Huber emphasizes that this case involves solely on-
reservation conduct among Indians, and, to the extent her operations extended beyond the
border of the Table Bluff Rancheria, her business was with other tribes on other
reservations. In her account of the facts, all she did was make wholesale deliveries to
other tribes on their reservations “as a courtesy,” while contractually taking and accepting
every order at the only store location she had, in her house on the Table Bluff Rancheria.
She insists the trial court made no finding that she conducted business off-reservation.
What the trial court actually found, she says, is that her business involved extensive “off-
reservation contacts,” a concept she contends might be relevant to an issue of personal
jurisdiction, but that has no legal significance here.
Huber relies heavily on our Supreme Court’s decision in Naegele, supra,
38 Cal.3d 509, a case involving an attempt by the California Department of
Transportation to use California’s Outdoor Advertising Act (Bus. & Prof. Code, § 5200 et
seq.) to regulate billboard signage on an Indian reservation that was visible from a state
highway running through the reservation. (Naegele, at pp. 513-514.) The Naegele court
found this enforcement effort preempted. (Id. at p. 522.) If “off-reservation safety and
aesthetic effects were insufficient to justify state regulation . . .” of on-reservation
activities in Naegele, Huber argues, the off-reservation effects relied upon by the trial
court are insufficient to avoid preemption here as well. This argument misses the thrust
of the analysis in Naegele, where there was a detailed federal statutory scheme and the
court found Congress did not intend to permit state regulation of billboards on Indian
reservations. (Id. at pp. 515, 522.) The opinion thus turned on principles of federal
obstacle preemption. (Id. at p. 522; see Viva! Internat. Voice for Animals v. Adidas
Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [summarizing types
of federal preemption; “obstacle preemption arises when ‘ “under the circumstances of
[a] particular case, [the challenged state law] stands as an obstacle to the accomplishment
32
and execution of the full purposes and objectives of Congress” ’ ”].) There is no
pervasive federal statutory scheme here.
The Attorney General bases his argument against preemption on the general idea
that Indian reservations are not legal islands unto themselves and that whatever vestiges
of sovereignty they still enjoy must give way in matters of commerce affecting the
welfare of state citizens outside their borders. “Absent express federal law to the
contrary,” he points out, “Indians going beyond reservation boundaries have generally
been held subject to nondiscriminatory state law otherwise applicable to all citizens of the
State.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 (New Mexico
I).) To the extent Huber operated on-reservation, the Attorney General contends, much
of her business was with non-tribe members who were enticed onto the Table Bluff
Rancheria by her promotions. He points out that Huber “maintained websites that
advertised ‘tax free’ and ‘cheaper cigarette[s]’ and encouraged customers to ‘come see
us!,’ sold cigarettes via mail order, and had a toll-free phone number. [She] did not
check for tribal identification and admits she sold cigarettes to the general public.”
The Attorney General also draws our attention to the scale of Huber’s enterprise.
What she portrays as a “small storefront” operation run out of her house is not, in fact,
some tiny, exclusively on-reservation business, he points out. Huber “sold huge
quantities of noncompliant cigarettes. Between November 23, 2009 and October 1, 2013,
she sold, distributed, and transported at least 14,727,290 packs of Seneca, Opal, King
Mountain, Couture, and Sands brand cigarettes to other stores within the state but beyond
her reservation. [She] invoiced over $30 million for these sales. Several days a week her
employees delivered these cigarettes using her own vehicles on state roads and highways.
Between March 8, 2007 and October 1, 2013, [Huber] also sold at least 1,969,279 packs
of Seneca, Opal, King Mountain, Couture, and Sands brand cigarettes at her retail store.
[Huber’s] tribe has about 600 members of all ages.” (Fns. omitted.)
All in all, we conclude that the Attorney General has the better of the argument on
the issue of preemption. In circumstances involving conduct that is partially on-
reservation and partially off-reservation, “a State may validly assert authority over the
33
activities of nonmembers on a reservation” if a balancing of interests under Bracker,
supra, 448 U.S. 136 calls for it. (New Mexico II, supra, 462 U.S. at p. 331.) And in this
balancing process, the “State’s regulatory interest will be particularly substantial if the
State can point to off-reservation effects that necessitate State intervention.” (Id. at
p. 336; see Rice v. Rehner (1983) 463 U.S. 713, 724 [“[Tribe member]’s distribution of
liquor has a significant impact beyond the limits of the Pala Reservation. The state has
an unquestionable interest in the liquor traffic that occurs within its borders, and this
interest is independent of the authority conferred on the States by the Twenty-first
Amendment”].)18 Here in particular, Moe, Colville, and Milhelm, as cigarette sales cases,
provide the framework for the appropriate balancing analysis.
A key teaching of Moe, Colville, and Milhelm is that the high court views the issue
of state regulation of cigarette sales on Indian reservations through an economic lens,
looking not only at the cost advantages of selling noncomplying cigarettes, but to the
incentives to lawbreaking that such sales create and the impact of upstream purchasing in
the wholesale market for illicit cigarettes. (Moe, supra, 425 U.S. at pp. 481-483;
Colville, supra, 447 U.S. at pp. 154-155; Milhelm, supra, 512 U.S. at pp. 73-76.)
Looking at this case in the same way, Huber’s cigarette sales on the Table Bluff
Rancheria in violation of the Directory Act and the Fire Safety Act were no different in
kind from the sales of non-tax stamped cigarettes at issue in Moe, Colville, and Milhelm;
by flouting those statutes, she gained a cost advantage over retail sellers who bought at
wholesale from complying manufacturers. Indeed, that cost advantage appears to have
been the foundation of her enterprise, serving as an inducement to nonmembers to visit
the Table Bluff Rancheria to avail themselves of prices made possible by this cost
18
See Cohen, supra, § 6.02[1], p. 504 (“Where activities occur partially within
and partially outside Indian country, and a substantial part of the activity takes place
outside, courts have generally upheld nondiscriminatory applications of state
jurisdiction”).
34
advantage, and creating a downstream market for wholesalers who distribute
noncompliant cigarettes.
Huber argues that Moe, Colville, and Milhelm are merely “tax” cases that have no
application outside the “special area of State taxation.” (See Cabazon, supra, 480 U.S. at
p. 215, fn. 17.) We are not persuaded. What the phrase “special area” of taxation refers
to is the rule that enrolled members of Indian tribes are exempt from state taxation.
(McClanahan, supra, 411 U.S. at p. 171.) Huber overlooks the fact that in Moe the court
departs from this “special area,” and it does so because in that case the state law
obligation the Indian smokeshops attacked (precollection of excise taxes) was not a tax at
all, but rather was an incidental tax enforcement measure directed at ensuring collection
from nonmembers (Moe, supra, 425 U.S. at pp. 481-483); the same was true in Colville
(precollection and recordkeeping requirements on retailers) (Colville, supra, 447 U.S. at
pp. 159-160); and in Milhelm (recordkeeping requirements and quantity restrictions on
wholesalers) (Milhelm, supra, 512 U.S. at pp. 64-67, 73-76). Thus, we reject Huber’s
argument that Moe, Colville, and Milhelm may be cast aside as oddball tax cases having
no significance outside the specialized arena of taxation. Indeed, we view this trio of
cases as integral to the entire body of Indian preemption law that has evolved over the
last 50 years.
The trial court correctly concluded that the balance of federal, tribal, and state
interests weighs in favor of California. Huber points to no federal interest, expressed by
statute or regulation, in promoting reservation sales of cigarettes, and makes no claim that
Congress, by statute or regulation, delegated to the Wiyots some form of authority that
might oust the authority of the state in this area. To the extent the Wiyot Tribe,
independently, has an interest in carving out a domain for its members in the cigarette
sales business—Ordinance No. 01-10 appears to evidence just such an interest—the
holding in Colville tells us that does not matter, absent a direct conflict. The court there
rejected an invitation to use tribal cigarette tax and marketing regulations as a
consideration weighing in favor of preemption. (Colville, supra, 447 U.S. at pp. 158-
159.) Against a nonexistent federal interest and a limited tribal interest, California has a
35
strong health and safety interest in policing cigarette sales. In the end, therefore, we
arrive at the same conclusion the Black Hawk court did with respect to the Directory Act
and the Fire Safety Act: “The California tobacco directory law promotes public health by
increasing the costs of cigarettes and discouraging smoking. [Citations.] The California
Cigarette Fire Safety and Firefighter Protection Act law—providing ignition-propensity
requirements—serves the public interest in reducing fires caused by cigarettes. . . . [And
n]o federal or tribal interest outweighs the state’s interest in . . . enforcing the California
tobacco directory and cigarette fire safety laws.” (Black Hawk, supra, 197 Cal.App.4th at
p. 1571; see also Rose, 16 Cal.App.5th at p. 328 [agreeing with Black Hawk’s preemption
balancing analysis].)
Huber argues that, by obtaining an injunction, which carries with it the threat of
contempt, the enforcement steps the Attorney General has taken here—causing the
shutdown of her business—go far beyond the “minimal” burdens the Moe, Colville, and
Milhelm courts approved. We cannot agree. The burden of complying with the Directory
Act and the Fire Safety Act, as the Attorney General points out, falls on manufacturers.
Huber’s only “burden,” if it can even be called that, is to choose product sourcing from
manufacturers who comply with those statutes. Huber points out that the court’s
injunction left her no choice but to shutter her business, but if that is the case the decision
to close her business rather than offer cigarettes that comply with California law was her
election, apparently looking at the economics of continued operation in compliance with
state law. Colville is quite clear that the burden was on her to show that the Directory
Act and the Fire Safety Act as enforced against her in the first and second causes of
action are “not reasonably necessary as a means of preventing fraudulent transactions.”
(Colville, supra, 447 U.S. at p. 160.) She failed to do so.
Huber’s complaint about the weight of the injunction does raise a further question
under the ultimate test for Indian preemption—whether enjoining on-reservation conduct
by an enrolled tribe member infringes on “the right of reservation Indians to make their
own laws and be ruled by them.” (Williams, supra, 358 U.S. at p. 220.) Although we
agree with the balancing of interests analysis adopted in Black Hawk and Rose, and
36
although we reach the same conclusion those courts did with respect to the Directory Act
and the Fire Safety Act, we note that Huber has a stronger argument for preemption than
the defendants did there because, here, unlike in those cases, the trial court enjoined an
enrolled tribe member’s business activities on her own reservation. That puts the issue of
possible infringement of tribal self-government more sharply here than in Black Hawk or
Rose. (See Black Hawk, supra, 197 U.S. at pp. 1564-1565, 1566-1567; Rose, supra,
16 Cal.App.5th at p. 321.)
We are not persuaded this makes a difference, however. In Colville, the high court
upheld the State of Washington’s power to seize illegal cigarettes by off-reservation
interdiction but saw no need to address whether the state had power to “enter onto the
reservations, seize stocks of cigarettes which are intended for sale to nonmembers, and
sell those stocks in order to obtain payment of the taxes due.” (Colville, supra, 447 U.S.
at p. 162.) This question, which the court described as “considerably different from” the
issue of off-reservation seizure, was not properly presented for decision. (Ibid.) We, too,
see no need to address the question of on-reservation enforcement. At oral argument, the
Attorney General stated the off-reservation seizure of goods would be a sufficient means
of enforcing the prohibition against the sale of illicit cigarettes. Although Nevada v.
Hicks, supra, 533 U.S. 353, which involved the on-reservation search of a tribe member’s
residence in a criminal investigation for violation of a game conservation statute (id. at
pp. 355-356), can be read to suggest that on-reservation enforcement might be
permissible where the activity involved presents some risk of harm to state citizens off
the reservation, we need not address that issue here in light of the Attorney General’s
concession. To the extent enforcement occurs off-reservation, the Wiyot right to self-
governance is not implicated.
IV. CONCLUSION
We reverse the order granting summary adjudication to the People on the third
cause of action for violation of the UCL. We also reverse the order denying summary
adjudication to Huber on the third cause of action for violation of the UCL. We thus
vacate the permanent injunction in part, to the extent it relies on and is designed to enjoin
37
violation of the UCL. In all other respects we affirm, and the case is remanded for
further proceedings consistent with this opinion.
_________________________
Streeter, Acting P.J.
We concur:
_________________________
Reardon, J.
_________________________
Smith, J.*
*
Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A144214/People ex rel. v. Huber
38
Trial Court: Humboldt County Superior Court.
Trial Judge: Honorable W. Bruce Watson.
Counsel for Appellant: Law Office of Dario Navarro, Dario F. Navarro;
Fredericks Peebles & Morgan, Michael A. Robinson,
James Joseph Oaqundah, for defendant and appellant.
Counsel for Respondent: Xavier Becerra, Attorney General, Karen Leaf, Senior
Assistant Attorney General, Nicholas Martin
Wellington and Erin Wallace Rosenberg, Deputy
Attorneys General, for plaintiff and respondent.
39