BILL ANALYSIS Ó AB 798 Page 1 ASSEMBLY THIRD READING AB 798 (Chesbro) As Introduced February 17, 2011 Majority vote LOCAL GOVERNMENT 9-0 ----------------------------------------------------------------- |Ayes:|Smyth, Alejo, Bradford, | | | | |Campos, Davis, Gordon, | | | | |Hueso, Knight, Norby | | | ----------------------------------------------------------------- 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 : 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. AB 798 Page 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 Government Code Section 6500, 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, with the original purpose of jointly financing and managing a regional wastewater treatment plant. 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 AB 798 Page 3 JPAs with the County of Del Norte and the City of Crescent City, which the language of this bill would allow. 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 Legislature 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 Legislature 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. AB 2166 (Chesbro) of 2009, containing similar provisions, was passed by the Assembly Local Government Committee on an 8-0 vote. Governor Schwarzenegger 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) of 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) of 2008, which would have allowed the Tule River Tribal Council to enter into a JPA with the City of Porterville to develop commercial property AB 798 Page 4 in the vicinity of the Porterville Airport. AB 1962 (Berg) of 2006 was vetoed by Governor Schwarzenegger 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. Governor Schwarzenegger also vetoed AB 2762 (Levine) of 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) of 2005, which would have allowed the Rumsey Band of Wintun Indians to join a JPA in Yolo County. AB 307 (Nestande) of 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. 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. Analysis Prepared by : Jennifer Klein Baldwin / L. GOV. / (916) 319-3958 FN: 0000219 AB 798 Page 5