National Indian Law Library, Indian Law Bulletins, Cabazon Band of Mission Indians v. Smith

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(Cite as: 2002 WL 32065673)

United States District Court,

C.D. California, Western Division.

CABAZON BAND OF MISSION INDIANS, et al., Plaintiffs,

Larry D. SMITH, et al., Defendants.

No. CV974687CAS(JGX).

Filed June 26, 1997.

Oct. 16, 2002.

Indian tribe sued county sheriff, seeking determination that tribal public safety department vehicles equipped with light bars could traverse state highways while passing from one segment of reservation to another. The District Court, 34 F. Supp.2d 1201, entered summary judgment for sheriff, and tribe appealed. The Court of Appeals, 271 F.3d 910 remanded for determination whether deputization agreement between Bureau of Indian Affairs (BIA) and tribe made vehicles into "authorized emergency vehicles" exempt from state statutory bar on use of light bars. Tribe moved for summary judgment. The District Court, Snyder, J., held that: (1) deputization agreement did not confer emergency status on vehicles; (2) BIA requirement that vehicles have emergency lights did not constitute federal law preempting state ban on light bars; and (3) state highway patrol commissioner had not conferred emergency vehicle status on vehicles.

Motion denied.

Deputation agreement, by which Bureau of Indian Affairs (BIA) granted tribal public safety department power to enforce certain federal statutes on tribal land, did not convert department's vehicles into "authorized emergency vehicles," under California statute exempting those vehicles from prohibition on use of emergency light bars when traversing state roads. West's Ann.Cal. Vehicle Code §§ 165(e), 27606.

Bureau of Indian Affairs (BIA) handbook, requiring tribal public safety department vehicles to have emergency lights, did not constitute federal law preempting state statute barring display by tribal vehicle of light bar while traversing state highways going from one part of reservation to another West's Ann.Cal. Vehicle Code §§ 165(e), 27606.

State highway patrol commissioner did not grant permit to tribal public safety department, allowing its police cars to operate on state highways as emergency vehicles exempt from prohibition on light bars, when commissioner wrote letter to department stating it was his opinion that police cars were emergency vehicles, and purporting to authorize them to carry light bars if they were not used. West's Ann. al. Vehicle Code §§ 165(f), 27606.

Nancy Seidler Eichler, Masry & Vititoe, Westlake Village, CA, Glenn M Feldman, Mariscal Weeks McIntyre & Friedlander, Phoenix, AZ, for Cabazon Band of Mission Indians, a federally recognized Indian tribe, plaintiff.

Nancy Seidler Eichler, Glenn M Feldman, (See above), for Paul D Hare, in his capacity as Director, Cabazon Public Safety Department, plaintiff.

Timothy T Coates, Greines Martin Stein & Richland, Los Angeles, CA, Robert M Pepper, Riverside County Counsel, Riverside, CA, Michael A Bell, Barbara A Buchholz, Bell Orrock & Watase, Riverside, CA, for Larry D Smith, individually and in his capacity as Sheriff of Riverside county, defendant.

Timothy T Coates, Robert M Pepper, Michael A Bell, Barbara A Buchholz, (See above), for Ronald F Dye, individually and in his capacity as Captain, Indio Station, Riverside County Sheriff's Department, defendant.

Timothy T Coates, Robert M Pepper, Michael A Bell, Barbara A Buchholz, (See above), for Riverside County of, a political subdivision of the State of California, defendant.

R Justin Smith, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for United States of America, amicus.

ORDER RE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

SNYDER, J.

I. INTRODUCTION

*1 Plaintiffs, the Cabazon Band of Mission Indians and Paul D. Hare, in his capacity as Director of the Cabazon Public Safety Department, bring a renewed motion for summary judgment on their claims for declaratory and injunctive relief against defendants Larry D. Smith, individually, and as Sheriff of Riverside County, Ronald F. Dye, individually, and as Captain of the Riverside County Sheriff's Department, Indio Station and the County of Riverside. The present motion concerns the asserted right of uniformed and armed law enforcement officers of the Cabazon Public Safety Department to travel on public highways across non-Indian lands in marked tribal police vehicles equipped with emergency light bars.

II. BACKGROUND

The dispute in this case requires consideration of the relationship between federal, state, and tribal law regarding the law enforcement powers of the Cabazon Band of Mission Indians. The Cabazon Public Safety Department provides civil and criminal law enforcement services on the reservation. The Department currently has seventeen officers who patrol the reservation in marked police vehicles.

The Cabazon Indian Reservation is comprised of four separate sections of land, with approximately thirteen road miles separating the most distant sections. Due to geographical and physical barriers, it is not possible to drive between the different sections without leaving the reservation. In order for the Cabazon Public Safety Department to provide law enforcement services to all sections of the reservation, the Department's vehicles must leave the reservation and drive across sections of public highways on non-Indian lands located in the County of Riverside.

Uniformed and armed Cabazon Public Safety officers drive dark blue vehicles marked on the sides and the rear with the words "Tribal Law Enforcement" and with the name "Cabazon" marked on the sides. Each vehicle is also equipped with a shotgun locked to the dashboard. These vehicles have United States government license plates issued by the Bureau of Indian Affairs. The vehicles previously had emergency light bars affixed to the roofs of the vehicles. However, Cabazon police officers were stopped and cited by local law enforcement agencies for violations of the California Vehicle Code when driving police vehicles with the light bars in place. The light bars have been removed pending the resolution of this controversy.

By the present motion, plaintiffs seek summary adjudication of their second and third claims for declaratory and injunctive relief. [FN1] Plaintiffs' second claim for relief seeks a declaratory judgment allowing tribal officers to "lawfully travel on official business across non-Indian lands in marked and designated Cabazon Public Safety Department vehicles while carrying Department- issued equipment, including firearms." Complaint, ¶ 27. The third claim for relief seeks an injunction preventing defendants from arresting officers of the Cabazon Public Safety Department traveling across non-Indian lands in marked and designated Department police vehicles while on official business. Id. ¶ 30. Plaintiffs initially phrased their request for relief in general terms: "[W]hether the Tribe's authority to operate a public safety department includes the right of uniformed and armed Cabazon Public Safety Officers to travel between the non-contiguous portions of the Cabazon Indian Reservation in distinctively marked tribal police vehicles equipped with emergency light bars in order to carry out their law enforcement duties." Plaintiffs' Motion for Summary Judgment filed September 4, 1998, at p. 1.

The parties initially filed cross motions for summary judgment on the first claim for relief which sought a determination as to whether Public Law 83-280 ("P.L.280") divested the Cabazon Band of the authority to establish and operate a tribal police force. After hearing these cross motions on April 29, 1998, the Court ruled that P.L. 280 did not divest the authority of the Cabazon Band "to establish a police force with jurisdiction to enforce tribal criminal law against Indians and to detain and turn over to state or local authorities non-Indians who commit suspected offenses on the reservation." Order entered on April 30, 1998, at 11.

As noted below, defendants have apparently agreed that uniformed and armed Cabazon Public Safety Department officers may travel across non- Indian land in marked police units in order to reach different sections of the reservation, so long as their emergency light bars are covered. Defendants' Opposition to Plaintiffs' Motion for Summary Judgment dated October 2, 1998, at 2.

Specifically, plaintiffs seek a determination that the Cabazon Band's tribal law enforcement officers are not subject to the provisions of the California Vehicle Code which establish who can operate "authorized emergency vehicles" as defined in California Vehicle Code § 165. [FN3] Under California law, authorized emergency vehicles can have emergency light bars affixed to their roofs and can operate those lights while performing emergency services. Such vehicles are exempt from certain traffic safety regulations when responding to an emergency. Plaintiffs argue that the Cabazon Public Safety Department vehicles should be treated like those of other law enforcement agencies operating in California, such as the Bureau of Indian Affairs. In the alternative, plaintiffs argue that the Cabazon Band's police vehicles now qualify as "authorized emergency vehicles" pursuant to § 165 of the Code because of the operation of a Deputation Agreement entered into between the Cabazon Band and the BIA and because of a letter written to the Cabazon Band by the Commissioner of the California Highway Patrol.

These "authorized emergency vehicles" are exempted from a number of provisions of the Vehicle Code. See Cal. Veh.Code § 21055. For example, these vehicles may exceed the speed limit or go through red traffic lights in emergency situations. Id.

A. Review of the Proceedings to Date

The present motion arises from the Ninth Circuit's remand of this Court's denial of plaintiff's earlier motion for summary judgment. The Ninth Circuit remanded because of new, potentially material factual developments in the case that took place after this Court's decision and the Ninth Circuit's decision affirming the order of this Court. In order to understand the posture of this case, it is necessary to review the earlier proceedings before this Court and the Ninth Circuit.

The California Vehicle Code provides that only specified vehicles may be equipped with light bars. Cal. Veh.Code § 27606. For the purposes relevant to this discussion, only authorized emergency vehicles may be equipped with light bars pursuant to the Vehicle Code.California Vehicle Code § 165 defines the term "authorized emergency vehicles" as used in the Code. The list of such vehicles includes public and privately-owned ambulances, forestry and fire department vehicles, vehicles owned by the state or bridge and highway districts, and vehicles owned and operated by any department or agency of the United States government. Cal. Veh.Code § 165(b)-(e). In addition, section 165(f) provides that a permit to operate an authorized emergency vehicle may be issued by the Commissioner of the California Highway Patrol. At the time of plaintiffs' earlier motion for summary judgment, it was undisputed that Cabazon Public Safety Department police vehicles did not fit within any category of "authorized emergency vehicles" as that term is used in the Vehicle Code.

In addition to authorized emergency vehicles, section 27607 permits light bars on vehicles operated by persons licensed in California as private investigators, private security companies, and alarm companies. Id. at § 27607. However, it is undisputed that Cabazon Public Safety Department vehicles are not so licensed.

References herein to the "Code" or "Vehicle Code" are to the California Vehicle Code.

In their earlier summary judgment motion, plaintiffs argued that insofar as the Vehicle Code precluded the Tribe from operating its marked police vehicles as "authorized emergency vehicles" off the reservation, it was preempted by federal laws and policies designed to promote tribal law enforcement activities and by the Cabazon Band's own independent need to exercise traditional governmental functions, including law enforcement. In a published opinion, the Court denied plaintiffs' motion for summary judgment and entered judgment on behalf of defendants. [FN6] The Court found that

The parties had previously agreed that plaintiffs' motion presented a pure question of law and that denying the motion would result in an entry of judgment in favor of defendants. Cabazon Band, 34 F.Supp.2d at 1203 n. 2.

The determination of whether federal law preempts state authority does not depend "on mechanical or absolute conceptions of state or tribal sovereignty, but calls for a particularized inquiry into the nature of the state, federal, and tribal interests at stake ." [ White Mountain Apache Tribe v. Bracker, 448 U.S. 142, 145 (1980). ( "White Mountain" ) ] "State jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority." New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1982) (citations omitted). State law is more likely to be preempted if it clearly interferes with or disrupts tribal authority. Id. at 338-339 (finding that state regulation of hunting and fishing by non-Indians on reservation land would "supplant tribal regulations" and "disturb and disarrange the comprehensive scheme of federal and tribal management").

Cabazon Band of Mission Indians v. Smith, 34 F.Supp.2d 1201, 1206 (1998). Accordingly, the Court balanced federal and tribal interests in promoting tribal law enforcement with the State of California's interest in promoting public safety through the regulation of vehicles allowed to have and operate emergency lights:

In the present case, the enforcement of the Vehicle Code has not been shown by plaintiffs to have significantly interfered with federal policies promoting tribal law enforcement activities. Indeed, although the Tribe has removed emergency light bars from all of the police vehicles in question, there has been no showing of any actual detriment to any of the Tribe's law enforcement activities. The state interests in regulating the operation of emergency vehicles are sufficient to overcome whatever interference with tribal enforcement efforts has been caused by precluding the use of light bars. The general federal policy of supporting tribal law enforcement efforts does not preempt valid state regulation of off-reservation activities in this situation.

Id. at 1207. The Court also rejected plaintiffs' argument that the failure to exempt Cabazon police vehicles from California's regulations concerning emergency lights substantially interfered with tribal sovereignty

However, "[a]bsent express federal law to the contrary, 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, 411 U.S.145, 148-149, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973). The extent of tribal sovereignty, however, clearly involves more than simple geographic limits, but includes the "tradition of Indian sovereignty over the reservation and tribal members." White Mountain, 448 U.S. at 143. Certain aspects of tribal sovereignty, such as tribal immunity from suit, have been held to be so fundamental as to preempt the enforcement in court of state laws regardless of where the activity takes place. See Kiowa Tribe [of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 753-54, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998) ]. However, the application of state laws in the present case has not been shown to prevent plaintiffs from effectively enforcing tribal laws on the reservation. Here, in light of the absence of any showing that the operation of police vehicles without light bars has interfered with the Tribe's law enforcement activities, the requirement that Cabazon Public Safety Department police vehicles cover their light bars when leaving the reservation does not constitute a substantial imposition on plaintiffs' right to self-government and tribal law enforcement.

At bottom, the question presented by this motion is whether general, non-discriminatory Vehicle Code regulations governing the operation of vehicles on public highways not located in Indian Country creates an undue or excessive burden on the Tribe's ability effectively to operate its own police department. The question involves consideration of the nature and extent of the burden measured against the interests of the state in enforcing its laws.

The County of Riverside states that it "does not prevent tribal police units from traveling on a public highway from one portion of the reservation to another, so long as the emergency light bars are covered and thus cannot be used." Defendants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment, dated October 2, 1998, at 2 (emphasis in the original). The County's position is in apparent recognition of the fact that preventing the Tribe's marked police vehicles from traveling on non-Indian lands to reach different portions of the reservation might so directly interfere with the Tribe's law enforcement functions as to impermissibly conflict with the Tribe's rightful authority to enforce the criminal law on the reservation.

In light of the County's position, the court need not decide this issue.

However, on the record before the Court, the Court cannot find that requiring the Tribe's police vehicles to refrain from displaying uncovered emergency light bars and to otherwise obey the Vehicle Code when traveling outside the reservation constitutes an undue or excessive burden on the Tribe's ability to perform effectively its on-reservation law enforcement functions.

Id. at 1207-08.

The Cabazon Band appealed. On May 17, 2001, in the first of two opinions on the matter, Cabazon Band of Mission Indians v. Smith, 249 F.3d 1101 (9th Cir.2001), the Ninth Circuit affirmed this Court's denial of summary judgment, but on significantly different grounds.The Ninth Circuit held that the balancing test set forth in White Mountain and utilized by this Court was inapplicable to state regulation of Indian activity taking place off- reservation. Id. at 1106. Instead, the Ninth Circuit held that the proper standard was that set forth in Mescalero, which provides for preemption of non-discriminatory state laws applied to Indian activities outside reservation boundaries only where there is "express federal law to the contrary." Id. at 1105 (quoting Mescalero, 411 U.S. at 148.). The Ninth Circuit found that the Cabazon Band:

As discussed below, this opinion was subsequently withdrawn.

does not claim that a specific federal law expressly provides for the preemption of the vehicle code provisions at issue here; instead, it merely points to a number of federal laws that purportedly demonstrate a general federal policy of promoting tribal self-sufficiency and encouraging tribal law enforcement efforts.

Id. at 1105. The Ninth Circuit then held that

because there is no "express federal law to the contrary," and because it is undisputed that California's Vehicle Code is "non-discriminatory state law otherwise applicable to all citizens of the State," the challenged code sections apply to the [Cabazon's] police vehicles when they travel on public highways located off the reservation.

*5 Id.

On July 18, 2001, the Cabazon Band and the BIA entered into the Deputation Agreement. On November 26, 2001, the Ninth Circuit issued a second opinion, Cabazon Band of Mission Indians v. Smith, 271 F.3d 910 (2001), withdrawing its earlier opinion and remanding the case to this Court "to consider the impact, if any, on the resolution of the issues in this case" of the Deputation Agreement. Id. at 910-911. The Ninth Circuit also instructed this Court to "hold such hearings and enter such further orders as it deems appropriate." Id. at 911.

On June 7, 2002, plaintiffs filed their renewed motion for summary judgment. Plaintiffs argue that the Deputation Agreement, and a subsequent letter written to the Cabazon Band by the Commissioner of the California Highway Patrol, operate to bring Cabazon Band police vehicles within the California Vehicle Code's definition of an "authorized emergency vehicle." In the alternative, plaintiffs argue that the Deputation Agreement and letter represent a stronger showing of federal interest in promoting the Cabazon Band's law enforcement activities than on the previous motion. Plaintiffs argue that this interest is now sufficiently strong to warrant preemption of the state interests furthered by the California Vehicle Code.

III. LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each cause of action upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party has sustained its burden, the nonmoving party must then identify specific facts, drawn from materials on file, that demonstrate that there is a dispute as to material facts on the elements that the moving party has contested. See Fed.R.Civ.P. 56(c). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). See also Celotex Corp., 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Abromson v. American Pacific Corp., 114 F.3d 898, 902 (9th Cir.1997).

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir.1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.

*6 Here, the parties have agreed that the issues to be decided present questions of law which are suitable for disposition by summary judgment on the record before the Court.

IV. DISCUSSION

A. The Deputation Agreement Does Not Transform Cabazon Police Vehicles into Authorized Emergency Vehicles or Preempt California's Regulatory Regime With Regard to Vehicle Emergency Lights

The Cabazon Band and the BIA Office of Law Enforcement Services entered into the Deputation Agreement on July 18, 2001, pursuant to federal regulations and tribal ordinances which provide for cooperative agreements between law enforcement services. The preamble to the Deputation Agreement states that

The intent of this Agreement is to provide for the deputation of law enforcement officers employed by the Tribe, which is a party to the Agreement, so that the Tribe's Law Enforcement Officers will be authorized to assist the BIA in its duties to provide law enforcement services and to make lawful arrests in Indian country within the jurisdiction of the Tribe. It is the express desire and intent of both parties to this Agreement to allow law enforcement officers to react immediately to observed violations of the law and to other emergency situations.

Fifth Declaration of Paul Hare, Ex. A ("Deputation Agreement"). The Deputation Agreement further states that its purpose is "to provide for efficient, effective, and cooperative law enforcement efforts in and around Indian country in the State of California, and its terms should be interpreted in that spirit." Id. at ¶ 1.

The Deputation Agreement provides that agencies which are parties to the agreement can issue "special law enforcement commissions" ("SLECs") to law enforcement officers of other parties to the agreement. Id. ¶ 2.A. Pursuant to the Deputation Agreement, Cabazon tribal law enforcement officers carrying SLECs are empowered to enforce "[a]ll Federal criminal laws applicable to Indian country, excluding the General Crimes Act, 18 U.S.C., Section 1152, and the Major Crimes Act, 18 U.S.C., Section 1153." Id. ¶ 3.A .In a section entitled "Liabilities and Immunities", the Deputation Agreement provides that "any Cabazon Law Enforcement Officer carrying a SLEC issued by the BIA will be treated as a Federal employee under the Federal Tort Claims Act under 43 CFR Part 22 in connection with any exercise of BIA law enforcement responsibility in Indian country." Id. ¶ 6.B. In a section entitled "Supervision", the Deputation Agreement provides that "[i]t is understood and agreed by both parties to the Agreement that the BIA, its agents, employees, and insurers, has no authority nor right whatsoever to control in any manner the day-to-day discharge of the duties of officers whom they have commissioned pursuant to this Agreement." Id. ¶ 5. Finally, the Deputation Agreement states that "nothing in this Agreement is intended to impair, limit, or affect the status of any agency or the sovereignty of any government." Id. ¶ 3.D.

The Deputation Agreement includes a non-exclusive list of 19 examples of federal statutes applicable in Indian country. Id. ¶ 3.A.1- 19.

Another part of the Deputation Agreement appears to limit this statement to the nineteen statutes specifically set forth as examples of federal law applicable to Indian Country. See id. ¶ 1 ("Any law enforcement officer carrying an SLEC will not be considered a federal law enforcement officer for the purposes of the Federal Tort Claims Act under 25 U.S.C. Section 2804(f)(1)(A) for any claim arising out of the enforcement of any statute, regulation or ordinance, except for the enforcement of those statutes listed in Section 3.A.1 through 19.")

*7 The Cabazon Band argues that due to the operation of the Deputation Agreement, its tribal law enforcement vehicles now meet the statutory definition of "authorized emergency vehicles" set forth in § 165(e). Section 165(e) provides that "any vehicle owned or operated by any department or agency of the United States government when the vehicle ... is actively engaged in law enforcement work." The Cabazon Band argues that as a result of its having entered into the Deputation Agreement with the BIA, virtually all of its law enforcement officers are now commissioned as agents of the federal government, exercise federal law enforcement powers, and are deemed to be federal employees for liability coverage purposes. Cabazon police vehicles also operate with United States Government license plates issued by the BIA and, as discussed below, are subject to BIA operational guidelines for tribal law enforcement vehicles. The Cabazon Band argues that under these circumstances, the Cabazon Public Safety Department is an agency of the federal government for law enforcement purposes, and its vehicles are therefore authorized emergency vehicles under § 165(e).

Although the Deputation Agreement does grant officers of the Cabazon Public Safety Department limited federal law enforcement powers on the Cabazon reservation, and provides them with protection under the Federal Tort Claims Act while they are exercising those powers, it is apparent from other aspects of the Deputation Agreement that it does not convert the Cabazon Public Safety Department into a federal agency, or an arm of the BIA. For example, paragraph 5 of the Deputation Agreement clearly provides that the BIA has no authority or control over the day-to-day operations of officers holding SLECs issued by the BIA. Therefore, it cannot be said that the Cabazon Band Public Safety Department has become an extension of the BIA. As further confirmation of that fact, the Deputation Agreement explicitly provides at paragraph 3D that nothing in it is intended to "affect the status of any agency or sovereignty of any government." It would affect the status of both the BIA, a federal agency, and the Cabazon Public Safety Department, a tribal agency, if the latter were somehow subsumed within the former. Accordingly, the Court finds that in spite of its newly granted federal law enforcement powers, the Cabazon Public Safety Department is not an agency of the federal government, and its vehicles do not fall within § 165(e)'s statutory definition of authorized emergency vehicles.

The Cabazon Band also appears to argue that due to the operation of the Deputation Agreement, its tribal law enforcement vehicles are now subject to federal standards for BIA law enforcement vehicles, including a requirement that such vehicles have operational light bars. The BIA Office of Law Enforcement Services sets forth its standards for law enforcement agencies that operate in Indian Country in a document entitled "Law Enforcement Handbook" (the "Handbook"). Fifth Declaration of Paul Hare, Ex. B. [FN11] In a section entitled "Standards For Law Enforcement Equipment," the Handbook states that "[v]ehicles used in routine or general patrol service must be conspicuously marked and equipped with at least the following equipment in operational order: [ (1) ] Emergency lights, and [ (2) ] A siren. Mandatory." Handbook Volume 6, Page 3.1.1 (emphasis in original). The Handbook describes the mandatory provisions of any of its sections labeled "Standards For Law Enforcement" as

The Handbook describes its purpose in the following terms:

In both its own and contractual law enforcement operations, through its chain of command and line authority, the [BIA] has management and oversight responsibility for law enforcement programs. As a result, the BIA, through the Office of Law Enforcement Services, has the obligation to provide direction to those who operate these programs. The failure to provide direction results in an unacceptable level of risk and associated liability for citizens, staff, administrators, and managers.

... [T]his Law Enforcement Handbook provides a statement of the Bureau's position in many specific areas of law enforcement operations, and in many cases provides direction about how specific activities will be carried out. It is a tool for managers, administrators, supervisors, and officers. Handbook at 1-2.

*8 the basic principles on which professional law enforcement agencies must operate. They define the procedural requirements for [BIA operated or sponsored law enforcement programs]. As a result, the standards are considered the minimum level of acceptable performance.

Id. at 3. The Cabazon Band argues that the BIA requirement that vehicles be equipped with emergency lights in operational order is a federal law which contradicts California's limitation on vehicles which are authorized to have light bars and that even under Mescalero, the test adopted by the Ninth Circuit in its withdrawn opinion, a state law must give way before an express federal law to the contrary.

The Cabazon Band's argument here is unavailing for several reasons. First, although the Handbook sets forth standards for law enforcement operations with specificity, it is merely "a statement of the [BIA's] position" and does not have the same preemptive effect as a statute or regulation. Therefore, the Handbook's requirement that BIA sponsored tribal law enforcement vehicles be equipped with emergency lights is not "express federal law" and does not preempt California's statutory regime governing what vehicles are permitted to have emergency lights. This conclusion is further supported by the fact that although the Handbook purports to set forth certain mandatory standards, it also repeatedly describes those standards as provisional and subject to modification to suit local circumstances. For example, the Handbook provides that

[a]lthough a number of topics have been developed for all law enforcement programs operated by the [BIA], there are areas of the [Handbook] which will require tailoring to specific local conditions, preferences, and resources of each law enforcement program. As a result, this handbook is viewed as a tool which will require some additional work, not an end product which can be used without any consideration of local conditions.

Handbook at 2. This flexibility is even apparent in the Handbook's discussion of the "Standards for Law Enforcement." On one hand the Handbook cautions that these standards "may not be modified" because they are the "basic principles on which professional law enforcement agencies must operate" and "are considered the minimum level of acceptable performance," while on the other it provides that "not all standards are mandatory and [ ] programs have considerable flexibility in determining which of the non-mandatory standards they will meet." Id. Thus, it is apparent that the Handbook is not a statement of binding federal law, but a set of rather malleable guidelines published by the BIA to assist in the coordination of its law enforcement programs throughout the country. As such, the Handbook does not preempt California's regulatory regime for emergency lights.

Furthermore, even if the Handbook did preempt state regulation of emergency lights in some circumstances, it would not do so here. Under general principles of federal preemption, state law is preempted only to the extent that it actually conflicts with federal law. Pacific Gas & Elec. Co. v. State Energy Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983) (citations omitted). Such a conflict may arise either where "compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 203-04 (citations omitted). Assuming arguendo that the Handbook requires tribal law enforcement vehicles to be equipped with operational emergency lights, defendants represent that they do not object to plaintiffs driving Cabazon tribal law enforcement vehicles equipped with emergency lights on state highways between the non-contiguous sections of the reservation, so long as the lights remain covered during that time. Thus it is possible for Cabazon tribal law enforcement officers to comply with both the requirements of the Handbook and state law by simply covering their emergency lights when operating their vehicles on state highways off the reservation. Furthermore, plaintiffs have made no showing that the California Vehicle Code's restrictions on Cabazon tribal law enforcement's use of emergency lights off the reservation stands as an obstacle to the enforcement of federal and tribal law on the reservation. As was the case at the time of the previous motion for summary judgment, plaintiffs have offered no facts to suggest that requiring Cabazon tribal law enforcement officers to cover the emergency lights on their vehicles when crossing state highways between separate areas of the reservation interferes in any way with their capacity to enforce either federal or tribal law. [FN12]

The same result is reached here not only under Mescalero and general principles of federal preemption, but also under the balancing test adopted by this Court in its previous order. The fact that Cabazon Public Safety Department officers are now charged with enforcing federal as well as tribal law on the reservation does not tip the balance in favor of federal and tribal interests since the California Vehicle Code's regulation of emergency lights has not been shown to prejudice has any of the Cabazon Band's law enforcement efforts.

*9 In an amicus brief submitted on behalf of plaintiffs, the United States appears to argue that the federal law enforcement powers granted by the Deputation Agreement extend beyond the borders of the reservation, and are therefore obstructed by the California Vehicle Codes restrictions on the use of emergency lights. However, the terms of the Deputation Agreement clearly limit the scope of the grant of federal law enforcement power to the Cabazon Band to areas traditionally "within the jurisdiction of the Tribe." Deputation Agreement at 1; see also id. at ¶ 3.D ("nothing in this Agreement is intended to impair, limit or affect the status of any agency or the sovereignty of any government"). The interpretation of the Deputation Agreement urged by the United States is plainly incorrect because it would substantially alter the Cabazon Band's traditional jurisdiction, if not their sovereignty, by giving it law enforcement power beyond the boundaries of the reservation.

B. The Letter From the Commissioner of the California Highway Patrol Does Not License Cabazon Band Police Vehicles as Authorized Emergency Vehicles

The Commissioner of the California Highway Patrol ("Commissioner") has statutory authority to issue "authorized emergency vehicle permit[s]" which allow vehicles which do not otherwise fall within the California Vehicle Code's definition of authorized emergency vehicle to operate as such. Cal. Veh.Code § 165(f). On May 6, 2002, Commissioner D.O. Helmick wrote a letter to Mark Nichols, Chief Executive Officer of the Cabazon Band, regarding the effect of the Deputation Agreement. The letter states, in relevant part:

It is my understanding that the Bureau of Indian Affairs has issued law enforcement "commissions" to certain Cabazon tribal law enforcement officers. Such commissions allow for the exercise of law enforcement authority on tribal lands. It is my opinion that Vehicle Code Section 165 would allow such officers to utilize authorized emergency vehicles in the performance of their duties. Clearly the issue loses clarity when the vehicles are being driven off tribal land. I would recommend not activating the emergency equipment while off the tribal lands unless extraordinary conditions exists [sic]. It is my opinion that it's reasonable for the vehicles to be utilized while traveling between locations.

Second Declaration of Mark Nichols, Ex. 1 (emphasis in the original). Plaintiffs argue that the Commissioner's written opinion that it is "reasonable" for the Cabazon Band's tribal law enforcement vehicles to be utilized while traveling between locations, coupled with his recommendation that the emergency lights not be activated while off tribal land unless extraordinary conditions exist, constitutes a permit under section 165(f) to operate as an authorized emergency vehicle.

In response, defendants submit a letter dated January 30, 2002, from Jonathan Rothman, General Counsel of the California Highway Patrol, to the Executive Director of Legal Affairs of the Cabazon Band. Declaration of Timothy Coates in Opp'n to Pls.' Mot. for Summ. Judg., Ex. 1. The letter states in relevant part

*10 Your November 30, 2001 and January 25, 2002 letters to Commissioner Dwight Helmick of the California Highway Patrol ("the Department"), requesting the Commissioner's "authorized emergency vehicles" designations for the tribal law enforcement vehicles operated by the Cabazon Band of Mission Indians ("Cabazon"), have been referred to this office for review and response....

Your correspondence notes the recent [Deputation Agreement and grant of SLEC's to Cabazon tribal law enforcement officers as well as the Ninth Circuit's withdrawal of its first decision.] Your letter suggests that the deputation agreement and issuance of federal commissions had the effect of eliminating application of certain California Vehicle Code restrictions to the vehicles operated by these tribal officers. For the reasons explained as follows, the Department does not agree with your assessment.

* * *

We note from the above-referenced Cabazon-Riverside County litigation that it is undisputed that absent federal preemption, the Vehicle Code prohibitions apply to the Cabazon vehicles. It is apparently Cabazon's position that it is by virtue of federal preemption that the otherwise applicable Vehicle Code statutes do not apply to Cabazon's vehicles.... We are, however, constrained by California's constitution from making such a preemption determination administratively and from declining to enforce the Vehicle Code sections as they may otherwise apply to Cabazon's vehicles.

Accordingly, in the absence of an appropriate judicial decision to the contrary, the Department is required to apply and enforce otherwise applicable California Vehicle Code sections to Cabazon's law enforcement vehicles which operating on California public highways. The Department is therefore unable to issue the "authorized emergency vehicles" designations requested in your correspondence.

Id. at 1-2. Defendants argue that in light the General Counsel of the California Highway Patrol's clear statement that Cabazon tribal law enforcement vehicles have not been designated as authorized emergency vehicles under Vehicle Code section 165(f), Commissioner Helmick's letter stating that it his opinion that it would be reasonable for those vehicles to be utilized off- reservation as long as they only activate their emergency equipment in emergency situations does not constitute an authorized emergency vehicle permit within the meaning of section 165(f). Given the strong statement of the legal position of the California Highway Patrol by its General Counsel, the Court is not persuaded that Commissioner Helmick's letter clearly demonstrates a contrary intention to designate Cabazon tribal law enforcement vehicles as authorized emergency vehicles. Therefore, the Court finds that Cabazon tribal law enforcement vehicles have not been approved by the Commissioner of the California Highway Patrol to operate as authorized emergency vehicles.

At oral argument, counsel for plaintiffs argued that it is impermissible to consider the letter of the General Counsel of the California Highway Patrol because section 165(f) of the Vehicle Code only authorizes the Commissioner of the Highway Patrol to issue permits. Without accepting this interpretation as correct, the Court finds Commissioner Helmick's letter to be sufficiently equivocal to prevent it from concluding that the letter constitutes an unrestricted permit that allows the Cabazon Band to drive on non-Indian land displaying their light bars.

V. CONCLUSION

For the reasons discussed above, plaintiffs' motion for summary judgment is DENIED.