BILL ANALYSIS Ó
AB 307
Page 1
ASSEMBLY THIRD READING
AB 307 (Nestande)
As Amended March 29, 2011
Majority vote
LOCAL GOVERNMENT 9-0
-----------------------------------------------------------------
|Ayes:|Smyth, Alejo, Bradford, | | |
| |Campos, Davis, Gordon, | | |
| |Hueso, Knight, Norby | | |
-----------------------------------------------------------------
SUMMARY : Changes the definition of "public agency" for
purposes of joint powers agreements (JPA) to include federally
recognized Indian tribes. Specifically, this bill :
1)Changes the definition of "public agency" for purposes of JPAs
to include federally recognized Indian tribes.
2)Prohibits any joint powers authority that includes a federally
recognized Indian tribe from having the authority to authorize
or issue bonds pursuant to the Marks-Roos Local Bond Pooling
Act of 1985 unless the public improvements to be funded by the
bonds will be owned and maintained by the joint powers
authority or one or more of its public agency members, and the
revenue streams pledged to repay the bonds derive from the
joint powers authority or one or more of its public agency
members.
3)Repeals provisions that authorize the Elk Valley Rancheria
Tribal Council to enter into a JPA with the County of Del
Norte and the City of Crescent City, or both.
4)Repeals provisions that authorize the Torres Martinez Desert
Cahuilla Indians to enter into a JPA to participate in the
Salton Sea Authority.
5)Repeals provisions that authorize the Hoopa Valley Business
Council, as the governing body of the Hoopa Valley Indian
Tribe, to enter into a JPA with the Humboldt County
Association of Governments.
EXISTING LAW :
AB 307
Page 2
1)Authorizes, under the Joint Exercise of Powers Act of 1949,
two or more public agencies (i.e. federal government, any
state, any state department or agency, county, county board of
education, county superintendent of schools, city, public
corporation, public district, and regional transportation
commission in any state) to enter into a JPA to exercise
jointly any power common to the contracting agencies that it
can do by itself.
2)Defines "public agency" to include, but not be limited to, the
federal government or any federal department or agency, this
state, another state or any state department or agency, a
county, county board of education, county superintendent of
schools, city, public corporation, public district, regional
transportation commission of this state or another state, or
any joint powers authority formed by any of these agencies
pursuant to the Joint Exercise of Powers Act.
3)Authorizes the Elk Valley Rancheria Tribal Council to enter
into a JPA with the County of Del Norte and the City of
Crescent City, or both.
4)Authorizes the Torres Martinez Desert Cahuilla Indians to
enter into a JPA to participate in the Salton Sea Authority.
5)Authorizes the Hoopa Valley Business Council, as the governing
body of the Hoopa Valley Indian Tribe, to enter into a JPA
with the Humboldt County Association of Governments.
FISCAL EFFECT : None
COMMENTS : California's JPAs are federations of federal, state,
and local public agencies that jointly perform duties that each
entity could perform on its own. California's JPAs collaborate
to address public needs, such as financing public facilities,
forming insurance pools, and enhancing planning and regulation.
JPAs can be structured as an agreement between existing agencies
or as a creation of a new, separate entity called a joint powers
authority.
In an opinion dated August 28, 1996, the California State
Attorney General (AG) found that an Indian tribe does not meet
any of the public agency definitions listed under the Joint
AB 307
Page 3
Exercise of Powers Act, but rather is a "domestic dependent
nation" separate and distinct from the United States. As a
result, special legislation is necessary in order for individual
tribes to enter into JPAs with legal public agencies.
There is precedent for declaring Indian tribes to be public
agencies for the purpose of participating in JPAs. Before the
1996 AG opinion, the Legislature designated Hoopa Valley Indian
Tribe as a public agency for the purpose of entering into JPAs
with the members of the Humboldt County Association of
Governments. Subsequent to the AG's opinion, AB 959 (Kelley),
Chapter 19, Statutes of 2001, authorized Torres Martinez Desert
Cahuilla Indians to enter into a JPA to participate in the
Salton Sea Authority, and AB 1172 (Berg), Chapter 39, Statutes
of 2003, authorized Elk Valley Rancheria Tribal Council to enter
into a JPA with Del Norte County and Crescent City to jointly
finance and manage a regional wastewater treatment plant and
later to enter into a JPA for purposes of forming the Border
Coast Regional Airport Authority.
The Marks-Roos Local Bond Pooling Act of 1985 (Marks-Roos)
allows local governments, as a joint powers authority, to pool
bonds to lower their overhead costs. Marks-Roos bonds were
created to provide a flexible alternative method of financing
needed public improvements, along with the benefit of reduced
borrowing costs through the use of bond pools. These bonds do
not require voter approval, and instead are approved by
resolution of the joint powers authority. The joint powers
authority is required when approving the resolution to issue
bonds at a regular meeting that: 1) the authority reasonably
expects the public improvement is to be located within the
boundaries of one or more local agencies of the authority; 2) a
local agency within whose boundaries the public improvement is
to be located has approved the financing and make a finding of
significant public benefit; and, 3) notice is sent to the AG and
the California Debt and Investment Advisory Commission.
This bill would prohibit any joint powers authority that
includes a federally recognized Indian tribe from having the
authority to authorize or issue bonds pursuant to the Marks-Roos
Local Bond Pooling Act of 1985, unless the public improvements
to be funded by the bonds will be owned and maintained by the
joint powers authority or one or more of its public agency
members, including the federally recognized Indian tribe, and
AB 307
Page 4
the revenue streams pledged to repay the bonds derive from the
joint powers authority or one or more of its public agency
members, including the federally recognized Indian tribe.
In the March 2000 primary, Proposition 1A was approved by
voters. Proposition 1A amended the California Constitution to
allow the Governor to negotiate and enter into gaming compacts
with Indian tribes, subject to ratification by the Legislature.
In anticipation of the passage of Proposition 1A, the Governor,
in 1999, negotiated and the Legislature approved ratifying
compacts with many Indian tribes. These compacts received
federal approval and are effective until December 31, 2020. As
part of the 1999 compacts, the Indian tribes agreed to provide
to the state a portion of their revenues from gaming devices in
the form of license and operation fees. These fees provide
money for two funds: the Indian Gaming Revenue Sharing Trust
Fund (IGRSTF), which distributes money to tribes that do not
have compacts or that have compacts and have fewer than 350
gaming devices, and the Indian Gaming Special Distribution Fund
(IGSDF), which finances various state and local government
activities. Each tribe under these compacts deposits a
percentage of its average net wins into IGSDF.
Between 2003 and 2010, the Governor negotiated, the Legislature
ratified, and the federal government approved six additional
compacts and amendments to 12 of the original compacts. The
post-1999 compacts and amendments do not have those Indian
tribes contributing to IGSDF, but do allow Indian tribes to work
directly with local governments to address casino impacts.
State law specifies the money deposited into IGSDF is available
for appropriation by the Legislature to address four needs in
the following priorities: a) supporting IGRSTF; b) funding
problem-gambling prevention programs managed by the Department
of Alcohol and Drug Programs; c) paying the operating costs for
the Indian gaming regulatory functions of the Gambling Control
Commission and Department of Justice; and, d) supporting local
governments impacted by tribal gaming.
Once the money is appropriated for local governments using a
nexus test, the money is divided among eligible counties to use
for mitigation projects according to a specified methodology.
In the 2008-09 fiscal year, the Legislature allocated a total of
$30 million for 25 counties, who issued 185 grants. At the
AB 307
Page 5
county-level, there are Indian Gaming Local Community Benefit
Committees, who evaluate the grant applications and award the
money. Any money that is not awarded reverts back to IGSDF.
The priority uses of IGSDF, as specified in statute, are: law
enforcement, fire services, emergency medical services,
environmental impacts, water supplies, waste disposal,
behavioral health, planning and adjacent land uses, public
health, roads, recreation and youth programs, and child care
programs.
The author states, today, many tribal governments have the
resources and sophistication to engage in large-scale economic
development, infrastructure construction, and broad-based
community services beyond their tribal membership. The author
also says many public agencies in the state have sought to
include tribal governments in JPAs in recent years, but special
legislation is necessary for each of these individual JPA
opportunities. According to the author, this bill would allow
Indian tribes and public agencies to enter into JPAs affecting
local issues without having to come to the Legislature each
time.
As noted earlier, JPAs are formed for a variety of public
service reasons, spanning groundwater resource management
programs to agricultural associations. Allowing public agencies
to enter into JPAs with Indian tribes without seeking special
legislation from the Legislature could mean Indian tribes become
more easily and integrally woven into the network of social
services provided to local communities.
The powers of JPAs are limited to the powers in common of all
the individual members of the JPA. Indian tribes would easily
fit into any number of JPAs because Indian tribes are not
limited by state laws and have more flexibility in what they can
accomplish than federal, state, and local agencies, which are
all constrained by regulations and statutes.
Would allowing Indian tribes to join JPAs at their discretion
create an unbalanced and inequitable relationship with public
agencies because Indian tribes would have all the benefits and
powers of a public agency while preserving sovereign immunity?
The question remains whether, as a sovereign nation, Indian
tribes would be subject to the same liabilities as public
agencies while serving on the JPA because, unless authorized by
AB 307
Page 6
Congress, the jurisdiction of state governments and the
application of state laws do not extend to Indian lands.
The Legislature may wish to ask how Indian tribes will benefit
by being partners in JPAs. It could be as simple as their
wanting to act as good neighbors and provide capital and input
to regional concerns and projects. It also could be that most
Indian tribes' members and employees live off tribal lands and
partnering with local agencies to provide public services is a
direct way of helping their own constituents. The sponsor of
this bill, United Auburn Indian Community, says, "Tribal
governments are mature governmental agencies that are
experienced in running schools, housing programs, health care
systems, natural resource protection services, and other
public-benefit programs."
The money in IGSDF derived from the 1999 Indian gaming compacts
is not much and is not distributed to all counties. The list of
priorities the Indian Gaming Local Community Benefit Committees
have to follow does not always match up to the needs of a local
government agency wanting to partner with an Indian tribe.
Thus, allowing Indian tribes to participate in JPAs would be a
more stable source of revenue and support for local governments
wanting not only to mitigate the impacts of gaming, but also
those wanting to meet the other social services needs of the
community at large.
Prior governors when vetoing bills granting specific Indian
tribes JPA authorizations have said Memorandums of Understanding
(MOU) are a better way for Indian tribes to partner with local
agencies. However, MOUs between local agencies and Indian
tribes do not allow tribes to be full and complete partners with
the local agencies. The Coachella Valley Association of
Governments (CVAG) is a joint powers authority made up of 10
cities and the County of Riverside. Three Indian tribes have
joined the joint powers authority through MOUs, but cannot be
given full membership. CVAG wants to have these three Indian
tribes as full members based on their successful, but limited,
partnership.
The Legislature, however, may wish to consider whether it wants
to deviate from the precedent established by the original
language of the Joint Exercise of Powers Act and allow Indian
tribes to be deemed a public agency for purposes of JPAs.
AB 307
Page 7
AB 847 (Berg, 2008), which would have allowed the Tribal Council
of the Yurok Tribe to enter into a JPA with public agencies for
the purposes of projects and activities for the preservation and
restoration of fisheries in the Klamath River Basin, did not
make it out of the Senate Local Government Committee. Governor
Schwarzenegger vetoed AB 1884 (Maze, 2008), which would have
allowed the Tule River Tribal Council to enter into a JPA with
the City of Porterville to develop commercial property in the
vicinity of the Porterville Airport. AB 1962 (Berg, 2006) was
vetoed by the Governor with the veto message expressing concern
about ambiguous language and a lack of specifics about the scope
of the Yurok Tribe's participation in a JPA. The Governor also
vetoed AB 2762 (Levine, 2006), which would have allowed 17
federally recognized Indian tribal governments to enter into a
joint powers agreement to participate in the Southern California
Association of Governments. In 2005, Governor Schwarzenegger
vetoed AB 1747 (Wolk, 2005), which would have allowed the Rumsey
Band of Wintun Indians to join a JPA in Yolo County. More
recently, in 2010 Governor Schwarzenegger vetoed AB 2166
(Chesbro, 2010), which sought to allow the Smith River Rancheria
Tribal Council to enter into a JPA to participate in the Border
Coast Regional Airport Authority.
AB 798 (Chesbro, 2011), a similar bill, allows the Smith River
Rancheria Tribal Council to enter into a JPA with the County of
Del Norte, the City of Crescent City, or both.
Support arguments: Supporters, the United Auburn Indian
Community, say allowing federally recognized Indian tribes to
join JPAs with local agencies will allow Indian tribes to join
their non-tribal counterparts in advancing the public good.
Opposition arguments: Opponents might say allowing federally
recognized Indian tribes to reap the benefits of being a public
agency without potentially having to be subject to the
liabilities of a public agency is unfair and inequitable.
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958
AB 307
Page 8
FN: 0000229