Blunk
Blunk v. Arizona Deparment of Transportation
Opinion
Lead Opinion
Thompson, J.
Opinion by Judge DAVID R. THOMPSON; Concurrence by Judge FLETCHER.
James V. Blunk challenges the right of the State of Arizona to regulate his commercial use of non-reservation fee land owned by the Navajo Nation. Blunk, a non-Indian, leased the land from the Navajo Nation and obtained a permit from the Navajo Nation to erect billboards on the land. He erected the billboards, however, without first obtaining a permit from the Arizona Department of Transportation (the “ADOT”), the state agency with state authority to regulate the land. The ADOT told Blunk he would have to take down the billboards and then apply for a permit. Blunk refused. Instead, he sued the ADOT and its director Larry Bonine in the United States District Court in Arizona. Blunk sought a declaratory judgment that the state’s attempted regulation of the Indian Fee Land violated federal preemption and the Navajo Nation’s sovereignty.
The district court granted summary judgment in favor of the ADOT and Bo-nine. Blunk appeals. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm. We conclude the subject land is not “Indian country,” and as a result the state may regulate Blunk’s use of it.
FACTS
Blunk…
Concurring Opinion
Fletcher, J.
concurring in the result:
Although I agree that we should affirm the district court’s grant of summary judgment for the ADOT, I cannot concur in the lengthy path taken by the majority to reach that result.
This is an easy case. As the district court noted below, Blunk “did not contest [the ADOT’s] assertion that the Navajo Fee Lands are not ‘Indian Country.’ ” District Court Memorandum Decision and Order at 3-4. Despite that concession, Blunk contends that the balancing test articulated in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 , 100 S.Ct. 2578 , 65 L.Ed.2d 665 (1980), ought to be applied to determine whether the ADOT can regulate his use of the Navajo Fee Lands. As the majority rightly points out, however, the White Mountain balancing test applies only where the land in question is “Indian country.” Thus, the issue before us is whether to treat the Navajo Fee Land as though it were Indian country, despite the parties’ concession that it is not Indian country. Such treatment is without precedent, and is properly rejected.
Readers of the majority opinion might have thought that the question before us was considerably more complex. The majority’s extensive…