BILL ANALYSIS Ó
AB 798
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 798 (Chesbro)
As Amended June 14, 2011
Majority vote
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|ASSEMBLY: |58-1 |(April 14, |SENATE: |34-0 |(June 23, |
| | |2011) | | |2011) |
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Original Committee Reference: L. GOV.
SUMMARY : Authorizes Smith River Rancheria Tribal Council to
enter into a joint powers agreement (JPA) to participate in the
Border Coast Regional Airport Authority, and to also enter into
a joint powers agreement with Del Norte County, Crescent City,
or both, for specified purposes and declares Smith River
Rancheria to be a public agency for purposes of that JPA.
The Senate amendments :
1)Delete the broad JPA membership authority for the Smith River
Rancheria Tribal Council and specify that the Smith River
Rancheria Tribal Council may enter into a JPA to participate
in the Border Coast Regional Airport Authority.
2)Specifies that Smith River Rancheria Tribal Council may also
enter into a JPA with Del Norte County and Crescent City, or
both to assist, facilitate, develop, or enhance sewer,
stormwater, drinking water, or transportation services.
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 Del Norte County, Crescent City, or both, and
declares Elk Valley Rancheria Tribal Council to be a public
agency for purposes of that JPA.
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AS PASSED BY THE ASSEMBLY , this bill authorized Smith River
Rancheria Tribal Council to enter into a JPA with Del Norte
County, Crescent City, or both, and declares Smith River
Rancheria 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.
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
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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 Del Norte County and 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 Del Norte County, 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
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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
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
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the exercise of public power when the land in question was not
on tribal land.
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958
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