BILL ANALYSIS Ó
AB 798
Page 1
Date of Hearing: April 6, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 798 (Chesbro) - As Introduced: February 17, 2011
SUBJECT : Joint powers agreement: public agencies.
SUMMARY : Authorizes Smith River Rancheria Tribal Council to
enter into a joint powers agreement (JPA) with the County of Del
Norte, the City of Crescent City, or both, and declares Smith
River Rancheria to be a public agency for purposes of that JPA.
EXISTING LAW :
1)Authorizes, under the Joint Exercise of Powers Act, 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)Authorizes Elk Valley Rancheria Tribal Council to enter into a
JPA with the County of Del Norte, the City of Crescent City,
or both, and declares Elk Valley Rancheria Tribal Council to
be a public agency for purposes of that JPA.
FISCAL EFFECT : None
COMMENTS :
1)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.
2)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 in Section 6500 of
the Government Code, but rather is a "domestic dependent
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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.
3)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, with the original purpose of
jointly financing and managing a regional wastewater treatment
plant.
4)Elk Valley Rancheria Tribal Council, Del Norte County, and
Crescent City have formed another JPA based on their original
authorization added in statute in 2004. The Border Coast
Regional Airport Authority was formed in 2007. This joint
powers authority manages and operates the Del Norte County
Regional Airport/Jack McNamara Field Airport by providing
regional representation for the entire geographic base of its
users. The initial membership of the JPA was later joined by
the City of Brookings, Oregon, and, in January 2010, Curry
County, Oregon.
According to the author, Smith River Rancheria, a federally
recognized tribe, has had a standing invitation to join the
Border Coast Regional Airport Authority, but has been unable
to do so because it lacks the legislative authority declaring
the sovereign Indian tribe a "public agency" for purposes of
JPA law.
The author also says the Smith River Rancheria would like to
leave open the possibility of entering into different and
future JPAs with the County of Del Norte and the City of
Crescent City, which the language of AB 798 would allow.
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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 Committee may wish to consider whether it would prefer to
limit Smith River Rancheria's participation in a JPA to the
Border Coast Regional Airport Authority rather than leave the
door open for the Smith River Rancheria to join future JPAs
that might occur between the County of Del Norte, the City of
Crescent City, or both. The Committee also may wish to
consider whether it would be preferable to have Smith River
Rancheria work with Del Norte County and Crescent City through
an MOU.
5)AB 2166 (Chesbro, 2009) contained similar provisions. This
Committee passed AB 2166 on an 8-0 vote. The Governor vetoed
AB 2166, saying:
"As I have stated before in vetoing similar measures, allowing a
tribal government that is not subject to all federal, state
and local laws to participate in the exercise of public power,
particularly off reservation lands, diminishes public
accountability and control.
Sovereign tribes can work cooperatively with their local
governments through agreements and memorandums of
understanding as contemplated in the tribal-state compacts my
Administration has executed. I encourage the proponents of
this measure to pursue their objectives in this manner."
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, was held in 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.
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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.
6)Similar legislation: AB 307 (Nestande, 2011) changes the
definition of "public agency" for purposes of JPAs to include
federally recognized Indian tribes and 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.
7)Support arguments: Supporters say including Smith River
Rancheria in the JPA will promote the coordinated economic
development of the region and will help achieve regional
representation for all users of the Del Norte County Regional
Airport/Jack McNamara Field Airport.
Opposition arguments: Prior Governor vetoes said it was
inappropriate to have a sovereign nation that is not directly
subject to all federal, state, and local laws participating in
the exercise of public power when the land in question was not
on tribal land.
REGISTERED SUPPORT / OPPOSITION :
Support
Smith River Rancheria ÝSPONSOR]
CA Tribal Business Alliance
City of Crescent City
Elk Valley Rancheria, CA
Regional Council of Rural Counties
AB 798
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Santa Ynez Band of Chumash Indians
Scotts Valley Band of Pomo Indians
United Auburn Indian Community
Opposition
None on file
Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. /
(916) 319-3958