BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 798 HEARING: 6/8/11
AUTHOR: Chesbro FISCAL: No
VERSION: 2/17/11 TAX LEVY: No
CONSULTANT: Weinberger
JOINT POWERS AGREEMENTS AND
THE SMITH RIVER RANCHERIA TRIBAL COUNCIL
Allows the Smith River Rancheria Tribal Council to enter a
joint powers agreement.
Background and Existing Law
The Joint Exercise of Powers Act allows two or more public
agencies to use their powers in common if they sign a joint
powers agreement. Sometimes an agreement creates a new,
separate government called a joint powers authority (JPA).
Public officials have created about 700 JPAs which are
confederations of governments working together for common
purposes.
State law generally limits membership in JPAs to public
agencies: federal, state, and local governments. According
to a 1996 informal Attorney General's opinion, tribal
governments can't sign joint powers agreements because
Indian tribes are "domestic dependent nations" and not
public agencies as defined by the Act.
Nevertheless, the Legislature has allowed three tribal
governments to join JPAs:
The Hoopa Business Council can join the Humboldt
County Association of Governments (AB 1137, Hauser,
1987).
The Torres Martinez Desert Cahuilla Indians can
join the Salton Sea Authority (AB 959, Kelley, 2001).
The Elk Valley Rancheria Tribal Council can join a
JPA with Del Norte County or the City of Crescent
City, or both (AB 1172, Berg, 2003).
The Del Norte County Regional Airport is a commercial
service and general aviation airport located north of
Crescent City (Del Norte County). The Border Coast
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Regional Airport Authority, a JPA, operates the airport.
The JPA's governing board includes representatives from Del
Norte County, the City of Crescent City, the Elk Valley
Rancheria, the City of Brookings (Oregon), and Curry County
(Oregon). The Smith River Rancheria is a
federally-recognized sovereign tribal nation located about
14 miles north of Crescent City. As the governing body of
a community served by the Del Norte County Regional
Airport, the Smith River Rancheria Tribal Council wants the
same ability to become a member of the Border Coast Airport
Authority JPA that the Legislature granted to the Elk
Valley Rancheria Tribal Council.
Proposed Law
Assembly Bill 798 allows the Smith River Rancheria Tribal
Council to enter into a joint powers agreement with the
County of Del Norte and the City of Crescent City, or both.
The Smith River Rancheria Tribal Council is deemed to be a
public agency for the purposes of the Joint Exercise of
Powers Act.
AB 798 specifies that, on and after Janaury 1, 2004, joint
powers authorities that the Smith River Rancheria Tribal
Council enters into are prohibited from having the
authority to authorize or issue Marks-Roos bonds unless:
The public improvements to be funded by the bonds
will be owned and maintained by the authorities or one
or more of its public agency members, and
The revenue streams pledged to repay the bonds
derive from the authorities or one or more of its
public agency members.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . The Border Coast Regional Airport
Authority JPA already includes a sovereign tribal
government, the Elk Valley Rancheria, as one of its
members. Since 2007, the JPA has operated the Del Norte
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County Regional Airport, which is a vital transportation
facility for the surrounding communities. The JPA plans to
significantly improve the airport, including an expansion
of the passenger terminal. Although the airport directly
affects the Smith River Rancheria's tribal members and
economic activities, the Rancheria can't join the airport's
JPA. AB 798 remedies this unfair situation by giving the
Smith River Rancheria the same authority to participate in
a JPA that the Legislature gave to the Elk Valley
Rancheria.
2. Be specific . State law allows the Hoopa Valley
Business Council and the Torrez Martinez Desert Cahuilla
Indians to participate in specific JPAs. The 2003 Berg
bill was less specific, authorizing the Elk Valley
Rancheria Tribal Council to enter into a JPA with Del Norte
County, Crescent City, or both. When the Berg bill passed,
the Elk Valley Rancheria Tribal Council expected to join a
JPA to finance a sewer plant. Instead, it became a member
of the Border Coast Regional Airport Authority JPA.
Although the Smith River Rancheria Tribal Council expects
that AB 798 will allow it to join the airport JPA, AB 798
uses the Berg bill's broad language, raising the
possibility that the Tribal Council could join different
JPAs. The Committee may wish to consider narrowing AB 798
to allow the Smith River Rancheria Tribal Council to enter
into a joint powers agreement to participate in the Border
Coast Regional Airport Authority.
3. New Governor, different result ? AB 798 is similar to
several recently unsuccessful legislative efforts to
authorize tribal participation in JPAs. Governor
Schwarzenegger vetoed:
AB 2166 (Chesbro, 2010), which would have allowed
the Smith River Rancheria Tribal Council to join the
Border Coast Regional Airport Authority.
AB 1884 (Maze, 2008), which would have allowed the
Tule River Tribal Council to join a JPA to develop
land near the Porterville airport.
AB 1962 (Berg, 2006), which would have allowed the
Tribal Council of the Yurok Tribe to join a JPA to
restore fisheries in the Klamath River Basin.
AB 2762 (Levine, 2006), which would have allowed 17
tribal governments to join a the Southern California
Association of Governments.
AB 1747 (Wolk, 2005), which would have allowed the
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Rumsey Band of Wintun Indians to join a JPA in Yolo
County.
The Governor's veto messages cited various concerns related
to tribes' exercising sovereign powers, particularly off
reservation lands, and expressed his preference that tribes
and local governments cooperate through "agreements and
memorandums of understanding." The Committee may wish to
consider whether the new Governor will continue his
predecessor's practice of vetoing bills similar to AB 798,
or whether he will take a different approach.
4. Related legislation . At its June 8 hearing, the
Committee will also consider AB 307 (Nestande), which
authorizes any federally-recognized Indian tribe to enter
into a joint powers agreement pursuant to state law. If
Governor Brown signs AB 307, AB 798 would be duplicative.
To ensure that AB 798 only takes effect if AB 307 does not
become law, the Committee may wish to consider amending AB
798 to repeal its provisions if both AB 798 and AB 307 are
chaptered.
5. Special legislation . The California Constitution
prohibits special legislation when a general law can apply
(Article IV, §16). AB 798 contains findings and
declarations explaining the need for legislation that
applies only to the Smith River Rancheria Tribal Council.
Assembly Actions
Assembly Local Government Committee: 9-0
Assembly Floor: 58-1
Support and Opposition (6/2/11)
Support : Smith River Rancheria; Border Coast Regional
Airport Authority; California Association of Tribal
Governments; California Nations Indian Gaming Association;
California State Association of Counties; California Tribal
Business Alliance; California Valley Miwok Tribe; City of
Crescent City; County of Del Norte; Elk Valley Rancheria;
Ewiiaapaayp Band of Kumeyaay Indians; Paskenta Band of
Nomlaki Indians of California; Regional Council of Rural
Counties; Santa Ynez Band of Chumash Indians; Scotts Valley
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Band of Pomo Indians; Susanville Indian Rancheria; United
Auburn Indian Community of Auburn Rancheria.
Opposition : Unknown.