SB 170 - Tribes Fast Track to Cancel Williamson Act Contracts

First the laundry.. The latest POLO email blast concerning SB 170 contained information that was not correct. SB 170, as it is written now, is flawed and I don’t like it for numerous reasons which I will go into later, but for now I want to address the POLO email.

POLO: Senator Dean Forez' SB 170 is a means of dismantling the Williamson Act, an immensely important Act to preserve agriculture.

False. The Williamson Act helps protect 16 million acres of farmland statewide. It was widely expected that the state funding would be cut off in the lengthy budget discussions in Sacramento, but in fact, $4.7 million was kept in the budget for the Williamson Act. SB 170 only involves federally recognized tribes. The Williamson Act will not be dismantled if SB 170 passes in some form.

POLO: These special interests, tribal governments, would be granted even greater authority than a county or city government because they would not have to hold the city or county required public hearings necessary to consider canceling a Williamson Act Contract. Cancellation would be automatic –

False. The bill declares that it shall not be interpreted to narrow the circumstances under which a county board of supervisors or a city council can approve the cancellation of a Williamson Act contract where other grounds for approval exist where one or both of the tribes rebuttable presumptions don't apply or have been rebutted.

In other words, it is NOT automatic… the county can find that either one or both of the presumptions are not true albeit at the risk of being sued by the tribe involved.


POLO: Senator Dean Florez' SB 170 will facilitate our town into an expanded casino town. Casinos generate hundreds of millions of dollars of profit annually. This profit is not taxed. The Santa Ynez Casino tribe chairman Armenta has publicly stated his intentions of buying and controlling thousands of acres in the Santa Ynez Valley.

Pure speculation and alarmist to the hilt. Stating this as a fact, that the passage of this bill “will” result in an “expanded casino town” and allow Mr. Armenta (hmmm.. a one man tribe huh?) to buy and control thousands of acres in the Santa Ynez Valley is pure alarmist propaganda. The bill is still in the early stages and my guess is that if it is to survive and eventually pass in some form it will be heavily amended so that Williamson Act land will not just easily be handed over to tribes to do what ever they want to do with it.

Once again POLO seems to want to scare everyone into jumping on their bandwagon. Please, I ask all of you receiving POLO email blasts to do the research yourself. Or just keep checking in here. I am not going away.

The best way to get an actual assessment of this bill and where it may be headed is to read the following. It is from a Senate committee analysis on SB 170:

http://www.aroundthecapitol.com/billtrack/analysis.html?file=sb_170_cfa_20090326_100752_sen_comm.html

SB 170, if passed, creates a rebuttable presumption that tribal cultural centers, infrastructure, and housing are alternative uses that are public concerns that substantially outweigh the Williamson Act's objectives when a federally recognized Indian tribe petitions to cancel a Williamson Act contract.

SB 170 creates a rebuttable presumption that for tribal cultural centers, infrastructure, and housing, land contiguous to an existing Indian reservation would provide more contiguous patterns of urban development than development of nearby non-contracted land when a federally recognized Indian tribe petitions to cancel a Williamson Act contract.

The bill declares that it shall not be interpreted to narrow the circumstances under which a county board of supervisors or a city council can approve the cancellation of a Williamson Act contract where other grounds for approval exist where one or both these presumptions don't apply or have been rebutted.

Background

The privately owned agricultural properties which are contiguous to the Chumash Reservation are subject to Williamson Act contracts with Santa Barbara County. The tribe could buy contiguous contracted land, give notice of nonrewal, and wait nine years for the contracts to end. Instead, the tribe wants the Legislature to make it easier for tribal governments to cancel Williamson Act contracts.

The Santa Ynez Band of Chumash Indians, which has a 135-acre reservation in Santa Barbara County, wants to build a cultural center, more infra-structure, and more housing. The Chumash Reservation is mostly developed, except for property which includes wetlands along a creek. Rather than develop the wetlands, the Chumash tribe wants to expand its reservation.

Through the tribal fee-to-trust process, a federally recognized tribe can buy more land and then apply to the federal Bureau of Indian Affairs to take that property into trust for the tribe. Federal officials are generally reluctant to accept land into trust status if there are encumbrances on the property's title. Williamson Act contracts are among the encumbrances that may concern federal officials who review these situations on a case-by-case basis.

The privately owned agricultural properties which are contiguous to the Chumash Reservation are subject to Williamson Act contracts with Santa Barbara County. The tribe could buy contiguous contracted land, give notice of non-renewal, and wait nine years for the contracts to end. Instead, the tribe wants the Legislature to make it easier for tribal governments to cancel Williamson Act contracts.

Comments

1. Self-sufficiency . The long-term sustainability of Indian tribes depends on having a land base that's sufficient to support economic development, housing, and other tribal activities. The federal fee-to-trust process allows tribes to expand their reservations by buying more land and bringing it under tribal control. Because Williamson Act contracts encumber the title to private property, those contracts can be an obstacle to tribal self-sufficiency. By creating rebuttable presumptions to buttress local officials' decisions, SB 170 makes it easier to cancel Williamson Act contracts and expand Indian reservations. With larger reservations, tribal governments can continue their efforts to promote economic self-sufficiency and long-term sustainability.

2. Already within reach. The Williamson Act already allows tribal governments to end contracts on land they want to add to their reservations. Although it requires a decade to unwind the contractual restrictions on development, non-renewing a Williamson Act contract is the preferred method because it results in an orderly transition from agricultural use to the potential for development. The Committee may wish to consider whether a tribal government that wants to end a Williamson Act contract should be treated differently than other property owners who want to develop agricultural land that is subject to Williamson Act contracts.

3. Beyond the county's reach . Once the federal government takes land into trust status for an Indian reservation, state and local land use laws no longer apply. Although SB170 makes it easier to cancel a Williamson Act contract to permit alternative uses such as tribal cultural centers, infrastructure, or housing, current state law can't require a tribal government to restrict the property to those land uses. As economic conditions or reservation policies change, a tribal government may want to use that former Williamson Act contracted land for other purposes.

4. Not Willits . In 2002, the First District Court of Appeals explored a controversy in which the Sherwood Valley Rancheria wanted to build low-income homes for tribal members and Willits Valley residents wanted to preserve open space for agricultural use. The Mendocino County Board of Supervisors made the statutorily required findings and approved the cancellation of the Williamson Act contract. The tribe signed a land use agreement with the County, voluntarily agreeing to comply with the terms of the former Williamson Act contract on the property where it would not build houses. In the Willits situation, the federal Bureau of Indian Affairs accepted the property into trust for the tribe.


5. Variation on a theme ? If legislators want to make it easier for county supervisors to cancel Williamson Act contracts and expand Indian reservations to accommodate tribal cultural centers, infrastructure, and housing, they might consider an approach that blends SB 170 with the current law on contract rescissions and the Sherwood Valley Rancheria's experience. The Committee may wish to consider an amendment that applies the bill's statutory rebuttable presumption to the rescission of a Williamson Act contract on land owned by a tribal government on the condition that the tribe imposes a covenant on the former contracted land, restricting its use to the stated alternative purpose (e.g., cultural centers, infrastructure, housing). As a contract rescission, the tribal government would put an agricultural conservation easement on other, non-contracted land of equal or greater value.

A hearing that was planned for yesterday on this bill has been continued to the committee's April 15 meeting at the request of Florez.

Here’s my 2 cents on this and why I have problems with SB 170 as it sits now.

In a nutshell it comes down to this. As it stands now, in accordance with current law, this is the sequence of events that would take place for a tribe seeking to take land into trust that is under contract of the Williamson Act:

1. Tribe buys land
2. Tribe files notice of non-renewal
3. Tribe waits 10 years for non-renewal
4. Tribe applies for fee to trust transfer near end of non-renewal period and Notice of Intent to take land into trust only after Williamson Act contract removed.

If passed (as is), SB 170 would change the sequence to this:

1. Tribe buys land
2. Tribe immediately applies to County to cancel Williamson Act contract
3. County either agrees to cancel contract or they rebut the presumption. Litigation could be the next step if the county does not agree to cancel but if they do agree then…
4. Tribe applies for fee to trust transfer near completion of cancellation as Notice of Intent to take land into trust only after Williamson Act contract cancelled.

Notice that SB 170 does not allow an automatic immediate cancellation of a contract. Tribes will still have to apply to the county to cancel the contract. This is where the rebuttable presumption term comes into play. A rebuttable presumption is an assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise.

So, in order for a contract in question to not be canceled under SB 170, the county involved must rebut the presumption that the cancellation is in the best public interest.

The California State Association of Counties as well as the Regional Council of Rural Counties are a couple of groups in opposition to this bill with one of the concerns being that SB 170 would increase the likelihood of litigation filed by tribal interests against counties who choose to rebut the presumption. In this economy where counties are struggling very hard to balance budgets and reduce spending, costly litigation may be the last thing counties want to get involved in.

Karen Keene, a senior legislative representative, and Kathy Mannion, a legislative advocate put it this way,” Our small, financially strapped counties would likely not even have the option to rebut because they lack the resources to enter into a costly lawsuit with tribal interests.”

I have concerns about the motive behind it and what the actual purpose it would serve.

This bill, as it reads right now, would allow federally recognized Indian tribes ( the bill used to read all tribes and tribal groups, but was amended March 25 to read federally recognized Indian tribe) no matter what their specific circumstances or situation may be, to declare, by rebuttable presumption, that their wishes and plans to develop land currently zoned as agriculture trumps the original purpose of the Williamson Act which was to preserve the land as ag and open space, which begs the question what is the determining factor that makes their wishes and needs more important than preserving the land? The bill would basically say that it doesn’t matter what the actual circumstances are… if the tribes want it…they get it. That bothers me.

To pass a law that would basically blanket all federally recognized Indian tribes no matter what the individual circumstances of the tribe or reservation is bothersome to say the least. I am sure there could be tribes who could benefit from this bill and would be deserving of the benefit of not having to wait 10 years to be able to apply to the feds to take land into trust for the intended purpose of the bill which would be to provide housing/infrastructure and cultural projects… BUT as a law that is applicable to all federally recognized Indian tribes it would also allow for gaming tribes who may have space limitations, like the Chumash, to expand their gaming operations without having to seek off-reservation land. They could buy the land, invoke SB 170 to have the Williamson Act contract immediately canceled, apply to the feds to take the land into trust then, as stated above in the 3rd comment in the Senate committee analysis, that “although SB170 makes it easier to cancel a Williamson Act contract to permit alternative uses such as tribal cultural centers, infrastructure, or housing, current state law can't require a tribal government to restrict the property to those land uses. As economic conditions or reservation policies change, a tribal government may want to use that former Williamson Act contracted land for other purposes.”

I am not saying that this is what the Chumash are planning, although when you hear Mr. Cohen say,” We did not want to include gaming. When you use the G-word ... it just makes everything so hard,” well…it makes you wonder. If gaming was not in the back of his mind when talking about the bill and possible land uses then why even mention it?

Again, I am not saying the Chumash have any plans at all to expand their gaming. With the economy going the way it is and the gaming industry taking a hit just like every other industry is it would seem like it would be a good idea to conserve or even cut back on activities. I am just pointing out that the bill, as is, opens it up for tribes to do much more than just build houses and cultural projects and such.

Another way tribes could use this bill to expand their gaming without actually using the canceled Williamson Act land would be to move or bulldoze non-gaming structures adjacent to their existing gaming facilities and move or rebuild them on the newly acquired land which would open up space next to existing facilities to expand their gaming.

The Chumash are surrounded by land which is under contract to the Williamson Act so they may be one of the tribes that SB 170 maybe suited for. It is a known fact that the County is totally against any annexation to the reservation and having the Williamson Act in thier back pocket doubles thier intent. I can't blame the tribe for sponsoring a bill such as this. You put yourself in thier shoes and what would you do?

But it is kind of an insult to the public the way the bill is written as it is now…saying that its purpose is to provide a way for tribes to acquire land to fulfill infrastructure, housing and cultural needs…..while the whole time there’s a 800 pound gaming gorilla disguised in sunglasses sitting right beside it humming Bobby McFerrin’s “Don’t worry, Be happy”.

There is already a process in place for tribes to have the federal government take land into trust for them, so, again, my question is, what is the true intent of SB 170 except to give tribes the advantage of bypassing the 10 year waiting period that other landowners don’t have?

The Senate committee recognizes the gaming loopholes and so I guess we shall see how it all plays out.

If this bill survives my guess is that it will probably be in the form of a compromise as outlined above in the last comment from the Senate committee analysis.

Stay tuned.