BILL ANALYSIS �
AB 307
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CONCURRENCE IN SENATE AMENDMENTS
AB 307 (Nestande)
As Amended June 22, 2011
Majority vote
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|ASSEMBLY: |66-0 |(April 25, |SENATE: |38-0 |(July 14, |
| | |2011) | | |2011) |
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Original Committee Reference: L. GOV.
SUMMARY : Changes the definition of "public agency" for purposes
of joint powers agreements (JPA) to include federally recognized
Indian tribes.
The Senate amendments :
1)Add any governmental or public fund or account to the list of
the revenue streams that may be pledged to repay the bonds.
2)Define "governmental or public fund or account" as including
monies or revenue streams derived from, held by, belonging to,
due to, or otherwise held for the benefit of, one or more
public agency members, but not including any fund or account
that is funded by any grants distributed to local government
agencies from the Indian Gaming Special Distribution Fund.
3)Specify that nothing in this measure shall be construed to
affect, modify, or repeal any existing joint powers authority
formed prior to the effective date of this act, including a
joint powers authority that includes a federally recognized
Indian tribe as a party or cooperating agency.
4)Clarify that this act continues any authority granted by any
prior law for a federally recognized Indian tribe to enter into
a JPA.
5)Remove language that would have repealed provisions that
authorize the Elk Valley Rancheria Tribal Council to enter into
a JPA with the Del Norte County and Crescent City, or both.
EXISTING LAW :
1)Authorizes, under the Joint Exercise of Powers Act of 1949, two
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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 Del Norte County and 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.
AS PASSED BY THE ASSEMBLY , this bill:
1)Changed the definition of "public agency" for purposes of JPAs
to include federally recognized Indian tribes.
2)Prohibited 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)Repealed provisions that authorize the Elk Valley Rancheria
Tribal Council to enter into a JPA with the Del Norte County
and Crescent City, or both.
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4)Repealed provisions that authorize the Torres Martinez Desert
Cahuilla Indians to enter into a JPA to participate in the
Salton Sea Authority.
5)Repealed 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.
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
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
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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 made 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 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 Election, 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.
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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: 1) supporting IGRSTF; 2) funding
problem-gambling prevention programs managed by the Department of
Alcohol and Drug Programs; 3) paying the operating costs for the
Indian gaming regulatory functions of the Gambling Control
Commission and Department of Justice; and, 4) 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
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
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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
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.
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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 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 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, did not make it out of 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 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) 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. More recently, in 2010 Governor
Schwarzenegger vetoed AB 2166 (Chesbro) of 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), Chapter 85, Statutes of 2011, allows the Smith
River Rancheria Tribal Council to enter into a JPA with Del Norte
County, Crescent City, or both.
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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 and Katie
Kolitsos / L. GOV. / (916) 319-3958
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